Note: This is an educational course, not legal advice.
Can government use race to help groups that faced discrimination, or to build diverse classes? Over 45 years the Court answered in a line of closely divided cases. This topic reports each holding and the reasoning on each side; it does not take a side. It uses the strict scrutiny framework and the purpose cases.
| Case | Program | Holding |
|---|---|---|
| Regents of the University of California v. Bakke (1978) | a medical school (UC Davis) reserved 16 of 100 seats for minority applicants | no fixed quotas; but Justice Powell's controlling opinion said diversity is a compelling interest and race may be one factor among many |
| City of Richmond v. J. A. Croson Co. (1989) | Richmond required prime contractors on city construction projects to subcontract a set share of the work to minority-owned businesses | state and local racial classifications, including remedial ones, get strict scrutiny; this plan failed |
| Adarand Constructors, Inc. v. Peña (1995) | federal incentives for hiring disadvantaged subcontractors, with a race-based presumption | federal racial classifications get strict scrutiny too ("consistency") |
| Grutter v. Bollinger (2003) | Michigan Law School considered race in a holistic, individual review | upheld (5 to 4): diversity is compelling; the program was narrowly tailored. Justice O'Connor said the Court expected such preferences would not be needed in 25 years. The Court rejected race-conscious admissions programs in 2023 |
| Gratz v. Bollinger (2003) | Michigan's undergraduate program gave 20 points on a 150-point scale for minority race | struck down (6 to 3): automatic points were not narrowly tailored |
Why it works
The arguments in the opinions. Supporters of race-conscious programs, in Grutter's majority (Justice O'Connor) and the Gratz dissents (Justices Stevens, Souter and Ginsburg), argued that diversity brings educational benefits, that the Constitution permits considering race to address past and present inequality, and that colorblindness can leave inequality in place. Opponents, in Grutter's dissents (Chief Justice Rehnquist and Justices Scalia, Kennedy and Thomas), argued that the Equal Protection Clause protects individuals, not groups; that sorting people by race is itself the harm the amendment forbids; and that the programs had no measurable goals or logical end point. Justice Kennedy, who had joined Croson and Adarand, argued that Michigan's review was not truly individual. What Grutter required: review of each applicant as an individual, no quotas or separate tracks, serious, good-faith consideration of race-neutral alternatives, no undue harm to other applicants and a logical end point.
Key idea
All racial classifications, including benign or remedial ones, get strict scrutiny (Croson, Adarand). Bakke barred quotas; Grutter upheld holistic review; Gratz struck down automatic points. The Court rejected race-conscious admissions programs in 2023.
Worked example: Which case?
A school gives every applicant of a listed race a fixed bonus of points. Which case most directly answers this, and how?
- A mechanical bonus for race is what Gratz addressed.
- Gratz (2003) held automatic points were not narrowly tailored.
Answer: Gratz v. Bollinger: struck down.
Worked example: The tier for remedial programs
A city argues that its racial set-aside should get only intermediate scrutiny because it is meant to help. What did the Court hold?
- Croson (1989) applied strict scrutiny to a city's remedial set-aside.
- Adarand (1995) did the same for federal programs.
- The purpose of helping does not change the tier.
Answer: Strict scrutiny applies to all racial classifications.
Common mistake
Describing the cases through one side's view. Supporters stressed diversity and remedying discrimination; opponents stressed that the Constitution forbids sorting by race. A good answer reports each opinion's reasoning and the holding. Another slip: mixing up Grutter and Gratz, decided the same day in 2003. Grutter upheld individual, holistic review; Gratz struck down automatic points.