From Bakke to Grutter: Rearticulating Diversity and Affirmative Action in Higher Education

Abstract

In the first U.S. Supreme Court case concerning affirmative action in higher education (Regents of the University of California v. Bakke, 1978), the splintered court decided that racial diversity serves a compelling state interest, allowing public institutions to count race as one of many diversity factors for admission. Due to the illusive criteria by which Justice Powell opined the racial diversity rationale, various states challenged the Bakke precedent and eliminated affirmative action policies. In this article, I examine 3 states-California, Texas, and Florida-that uniquely responded to the state of disarray that the Bakke decision created, and assesses the contradictions of replacing affirmative action with alternative programs that appeal to notions of meritocracy, equal opportunity, and diversity. Finally, I point out inconsistencies in the second U.S. Supreme Court decision, in Grutter v. Bollinger (2003), particularly as it develops a weak rationale for allowing the University of Michigan Law School to achieve diversity through a critical mass of minority students.