Term Paper: Bakke v. Regents

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[. . .] Another judge on the panel, however, argued that this goes too far and that if affirmative action is to end, it should be done by the Supreme Court and not a three-judge panel.

2) Even if the Supreme Court did agree with the panel, universities are likely to find ways to get around the ruling (Burka 228).

Actually, the Supreme Court refused to review the Hopwood decision. In a separate case in 2000, an appeals court upheld the affirmative-action policies of the University of Washington and cited the Bakke decision as the law. The Supreme Court in 2001 let this decision stand, thus leaving the decision in place that found achieving diversity to be an adequate justification for public colleges to consider race in admissions. This was a victory for supporters of affirmative action, a group which includes most college officials. It was feared at the time that the Court might use the case to review its ruling in Regents of the University of California v. Bakke, the ruling on which most colleges' affirmative-action programs are based. However, legal scholars still warn that at some point in the next few years, the Supreme Court is likely to review a case challenging college-admissions policies and may decide otherwise (Gose A24).

The Washington cased was first raised in 1999

Another case was raised in 2001 when a three-judge panel of the 11th Circuit Court of Appeals, which includes Alabama, Georgia, and Florida, struck down a University of Georgia undergraduate affirmative action program. The decision in Johnson v. Board of Regents of the University of Georgia (U.S. Court of Appeals for the Eleventh Circuit [August 27, 2001]) removed another support from the diversity rationale which undergirds almost every affirmative action program at the nation's colleges and universities. In 1989, the Federal Office of Civil Rights declared that the University of Georgia had no need to take any more action to remedy the legacy of its segregated past. The only rationale left to justify an affirmative action program was the diversity rationale, and to this end, the university relied on the Powell opinion in Regents of the University of California v. Bakke. The decision in this case did not dispute that Powell's opinion on ethnic diversity was binding on the lower courts and could serve as a constitutional basis for racial preferences, simply leaving this as a question for the Supreme Court to resolve. The decision simply stated that "for the purposes of this opinion, that the University of Georgia asserted interest in student body diversity is a compelling interest" (Bresler 13).

The decision by Judge Stanley Marcus challenged whether the school's policy of granting an automatic numerical advantage to a nonwhite applicant was narrowly tailored to achieve the goal of a diverse student body. Instead, he found the system to be rigid and incomplete. The system, said Judge marcus, took no account of "individuals who come from economically disadvantaged homes; individuals who have lived or traveled widely abroad; individuals from remote or rural areas; individuals who speak foreign languages; individuals with unique communication skills (such as an ability to read Braille or sign to 'talk' with the deaf); and individuals who have overcome personal adversity or social hardship" (Bresler 13). marcus further stated that if a university wanted to achieve a genuinely diverse student body, "it must be prepared to shoulder the burden of fully and fairly analyzing applicants as individuals" and that any admission policy must be "flexible enough to ensure that each applicant is evaluated as an individual and not in a way that looks to her membership in a favored or disfavored racial group as defining feature of her candidacy" (Bresler 13). Standards such as these would make any racial preference system difficult to sustain even if diversity were to be considered a compelling state interest. As a result of this decision, the University of Georgia decided not to appeal the case to the Supreme Court. Bresler says that those most likely to make it to the Supreme Court are two conflicting affirmative action cases involving the University of Michigan. In the first, Gratz v. Bollinger (122 F. Supp.2d 811 [E.D. Mich. Dec. 13, 2000]), concerning a racial preference in undergraduate admissions, the District Court judge cited Powell in Bakke and ruled that racial diversity contributed to positive educational outcomes and so would be considered a compelling state interest justifying the use of race under the 14th Amendment. In the second, which involved the law school (Grutter v. Bollinger [2001 U.S. Dist. LEXIS 3256 (March 27, 2001)]), the district judge cited Hopwood and ruled that "Powell's opinion in Bakke was his alone and that the diversity rationale was not binding on the lower courts" (Bresler 13). Stuart Taylor recently made a predicrtin regarding this case:

The Supreme Court will almost certainly reverse the 6th Circuit decision, Grutter v. Bollinger?

which conflicts squarely with a 1996 decision by the 5th Circuit called Hopwood v. State of Texas?

and will strike down the blatant preferences used by the law school. It may well do so on narrow grounds, leaving undisturbed the less egregious racial preferences that have become pervasive at selective universities across the nation. But it might also issue a broad ban on all, or almost all, such racial preferences in admissions... (taylor 1455).

The numerous cases that have been brought on this issue shows that affirmative action can be a divisive issue, that there are proponents who want assurances that past discrimination will be addressed and corrected, and that there are opponents who believe that affirmative action is just a different form of discrimination and that only a color-blind, completely neutral meritocracy can be justified under the Constitution. The former view has been upheld in law for some time, but the latter view is becoming more and more accepted by the U.S. Supreme Court, which has the final say in such matters. The fact that the Court has not yet abandoned affirmative action entirely does not mean it will not do so in the future once a case allowing the issue to be examined more closely arises. Based on readings, it seems that both proponents of affirmative action and opponents believe that this is possible and perhaps even likely because of signals from the Court, but until the proper case arrives, no one can be certain what the Supreme Court will do.

Works Cited

Bresler, Robert J. "The Courts Close in on the Diversity Rationale." USA Today Magazine 130(2680)(January 2002), 13.

Burka, Paul. "Fight Bakke." Texas Monthly 24(5)(May 1996), 228.

Gose, Ben. "Supreme Court Rejects Appeal of a Decision That Cited 'Bakke' to Defend Affirmative Action." Chronicle of Higher Education 47(39)(6 June 2001), A24.

Gratz v. Bollinger (122 F. Supp.2d 811 [E.D. Mich. Dec. 13, 2000]).

Grutter v. Bollinger (2001 U.S. Dist. LEXIS 3256 [March 27, 2001]).

Hopwood v. Texas (Hopwood v. Texas, 861 F. Supp. 551 [WD Tex. 1994]).

Johnson v. Board of Regents of the University of Georgia, U.S. Court of Appeals for… [END OF PREVIEW]

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