Bakke, Bollinger, and Blum: Reflections on A Half-Century of Affirmative Action Policies in Higher Education

I. Introduction

When the Class of 2023 joins Columbia’s campus later this fall, many students will have Les Goodson and Gregory Peterson to thank.  In the fall of 1969, nearly 50 years ago, they too joined Columbia’s community as undergraduates, making their trek down College Walk as some of the earliest black students admitted to Columbia after the civil rights push of the 1960’s and 70’s.  In the admissions cycle that year, “the number of students recorded as black who applied rose to 220 from 121, the number who were admitted rose to 130 from 58, and the number who registered rose to 48 from 31 out of a total class of about 700.” [1] Little did Goodson and Peterson know, they were blazing a new trail for numerous young people of minority backgrounds to follow.  Their attendance at Columbia University—an institution that has taken pride in its climate of political and ethical awareness from its inception in the 18th century—represented a giant step forward in the civil rights movement.

This article seeks to reflect on affirmative action policies in higher education of the past half-century and comment briefly on new challenges to the practice.  It is my further intention to respond to Anemona Hartocollis’s Times piece, “50 Years of Affirmative Action: What Went Right, and What it Got Wrong,” with an integrative legal analysis.

II. The Bakke Case 

In the 1960’s, the Kennedy and Johnson administrations ushered in an unprecedented focus on civil rights issues.  With the signing of Executive Order 10925 in 1961—requiring government departments to look into “affirmative steps” that can be taken to “realize more fully the national policy of nondiscrimination”—and the passing of the Civil Rights Act of 1964,  legislative action broadly clarified obscure aspects of racial jurisprudence. However, this progress also added a new dimension to the debate on race in education: Affirmative action.  To what extent should we redress past systematic discrimination, if at all?  How could American society at large practice “affirmative steps” in an equitable manner? [2] 

In 1974, a young man named Allan Bakke applied to the University of California Medical School at Davis (UC Davis) for the second time, after being rejected the year prior.  “The school reserved sixteen places in each entering class of one hundred for “qualified” minorities, as part of the university’s affirmative action program.” [3] Ultimately, Bakke was rejected a second time despite the fact that “in both years, special applicants were admitted with significantly lower scores than respondent’s [Bakke’s].” [4]  He filed suit soon after. 

In the plurality opinion delivered by Justice Powell, Powell wrote that “since petitioner [Regents of the University of California] could not satisfy the burden of proving that respondent would not have been admitted even if there had been no special admissions program, he must be admitted.”  In stating his reasoning, Powell concurred with the sentiment of the lower court that a racial quota was unconstitutional.  Interestingly, though, “the [lower] court refused to order Bakke’s admission… holding that he had failed to carry his burden of proving that he would not have been admitted but for the existence of the special program.” [4]  The stated evidentiary burden by the lower court was hence overruled by Powell.

 The contribution of Regents of the University of California v. Bakke to the ongoing debate about affirmative action in education is two-fold.  First, it upholds affirmative action in so far as it does not involve racial quotas, and is instead used as one of many factors in a holistic review process.  Secondly, the evidentiary burden for violation claims under the Equal Protections clause gets clarified; in this case, the Supreme Court determines it is UC Davis’s burden to disprove Bakke’s allegation. These two points are fundamental to understanding Bakke in the context of educational affirmative action jurisprudence.

III. The Bollinger Developments

In recent years, US courts have become more receptive to the so-called “diversity argument,” the rationale that there is inherent value in a more diverse admitted class.  Boykin and Palmer express this new reality eloquently in their article published in the Journal of Negro Education titled “Examining the Paradox between Dismantling De Jure Segregation and Affirmative Action: Implications from Contemporary Higher Education Case Law.”  Referencing later litigation, they write, “the Supreme Court reaffirmed higher education institutions’ power to include race as a consideration to achieve a diverse student body, so long as the consideration is narrowly tailored and does not function as a quota system.” [5] The two most frequently cited cases that reaffirm Bakke and, at the same time, introduce new ideas to our broader discussion, are Grutter v. Bollinger and Gratz v. Bollinger (2003). Taken together, they send mixed messages about how exactly JFK’s “affirmative steps” should be implemented.

When Barbara Grutter applied to the University of Michigan Law School in 1997 as a white resident, she was denied admission.  The policy of the Law School Admissions Office was to review each document in the applicant’s file while being mindful of other “soft variables.”  As written in the case syllabus, “the policy does not define diversity solely in terms of racial and ethnic status and does not restrict the types of diversity eligible for “substantial weight,” but it does reaffirm the Law School’s commitment to diversity with special reference to the inclusion of African-American, Hispanic, and Native-American students, who otherwise might not be represented in the student body in meaningful numbers.”  Further, there was a goal to enroll a “critical mass” of these minority students, though the tangible impact of the policy remained unclear. [6]

 In the case of Gratz v. Bollinger, Jennifer Gratz applied to the College of Literature, Science, and the Arts (LSA)—an undergraduate school at the University of Michigan—in 1995 before being rejected.  Similar to previous lawsuits alleging discrimination, Gratz sued on the basis of alleged 14th Amendment and Title VI Civil Rights Act violations.  Upon appeal to the nation’s highest court, Gratz succeeded in her claims of discrimination while Grutter failed.

The similarity of these two cases—same university, same race, and same general admissions doctrine—juxtaposed with the two different summary judgments highlight just how nuanced the Court’s interpretation of “affirmative steps” has become.  In the case of Gratz, it seems that ambiguity in guidance, as demonstrated by the abstract concept of a “critical mass” in Grutter, may, in fact, trump clarity.  The Court especially zeroed in on the additional 20 points members of underrepresented communities are awarded in the Gratz case, writing that unlike Powell’s opinion in Bakke, “the LSA’s 20-point distribution has the effect of making the factor of race… decisive for virtually every minimally qualified underrepresented minority applicant.” [7] Taken together, Grutter and Gratz underscore, first and foremost, the importance of admissions considerations based on the individual.  Furthermore, it evinces the Court’s growing willingness to adopt the idea first introduced by Justice Powell--namely, that no single factor can contribute more to the idea of diversity than any other.    

 IV. Considering Blum 

With each passing court case, observers see important nuances being flushed out while others see affirmative action slowly being eroded.  For ardent proponents of affirmative action, no one represents more of a threat than Edward Blum, a political and legal strategist that is active in race-related litigation.  Most recently, Blum has been the face of an effort to expose Harvard University of alleged discriminatory admissions practices towards Asian American applicants.  Although the case has yet to be decided, it seems that the most damning revelation has been laid on the table: “Asian-American applicants received lower personal ratings (one of four ratings Harvard uses) than did applicants of other races in the university’s admissions processes.” [8] This raises a series of old and new questions.  Who bears the evidentiary burden in this case?  Is statistical evidence enough to prove violations of anti-discrimination laws?  What about unconscious bias; what role does intent play?  These questions will soon be addressed by Judge Burroughs of the District of Massachusetts, but regardless of her decision, arguments will likely be litigated at the Supreme Court level.

V. Conclusion

Fifty years have passed since Columbia drastically increased its population of minority students in response to internal and external pressures.  Today, it seems that Columbia and institutions of higher learning everywhere are more alone than ever in fighting for affirmative action practices.  As Bollinger, now president of Columbia University, recently described, “in that time [1968] there was a sense, pure and simple, that universities had to do their part to help integrate higher education.” Today, he says, “we are still on that mission, but the sense of purpose and urgency and connection to the past have dissipated.” [1]

 There are still many questions, even after half a century, about how exactly we should implement affirmative action policies so that they impact people in an equitable manner. Courts have not yet explored every facet of this issue, nor have they considered a sufficient amount of admissions scenarios.  The next 50 years, now focused on diverse considerations of fairness in American law, thereby poses a critical period for judicial and legislative developments of affirmative action policies in higher education.

Sources:

[1] Hartocollis, Anemona. "50 Years of Affirmative Action: What Went Right, and What It Got Wrong." The New York Times. March 30, 2019. Accessed April 01, 2019. https://www.nytimes.com/2019/03/30/us/affirmative-action-50-years.html.

[2] Executive Order 10925. Accessed April 01, 2019. https://www.eeoc.gov/eeoc/history/35th/thelaw/eo-10925.html.

[3] "Regents of the University of California v. Bakke." Oyez. Accessed May 1, 2019. https://www.oyez.org/cases/1979/76-811.

[4] "Regents of the Uni v. of Cal. v. Bakke." Legal Information Institute. Accessed April 20, 2019. https://www.law.cornell.edu/supremecourt/text/438/265&.

[5] Tiffany Fountaine Boykin, and Robert T. Palmer. "Examining the Paradox between Dismantling De Jure Segregation and Affirmative Action: Implications from Contemporary Higher Education Case Law." The Journal of Negro Education 85, no. 2 (2016): 114-28. doi:10.7709/jnegroeducation.85.2.0114.

[6] "Grutter v. Bollinger, 539 U.S. 306 (2003)." Justia Law. Accessed April 11, 2019. https://supreme.justia.com/cases/federal/us/539/306/#tab-opinion-1961291.

[7] "Gratz v. Bollinger, 539 U.S. 244 (2003)." Justia Law. Accessed April 12, 2019. https://supreme.justia.com/cases/federal/us/539/244/#tab-opinion-1961288.

[8] Hoover, Eric. "At One Final Hearing, Harvard and Students for Fair Admissions Squared Off. Here’s What Happened." Chronicle.com. Accessed April 01, 2019. https://www.chronicle.com/article/At-One-Final-Hearing-Harvard/245695.