48. How Strict Should Courts Be?
The affirmative action debate that won’t die
Imagine two students applying to college.
One has a resume full of achievements, but she also grew up in a neighborhood shaped by decades of discrimination. Her parents attended underfunded schools, her community lacks resources, and she’s spent her life working twice as hard to get half as far.
The other has similar achievements but didn’t face those same barriers.
Now imagine a university that wants both students in the classroom. It believes diversity is essential. Different perspectives make education stronger. The school says race is one small part of how it evaluates each applicant, alongside grades, test scores, essays, and more.
Is that fair? Or is it favoritism?
That’s the heart of the debate that Justice Powell left unresolved in Regents of the University of California v. Bakke (1978), and one that courts are still wrestling with today.
Should Courts Treat All Uses of Race the Same?
In Bakke, the Court struck down a rigid quota system but allowed schools to consider race as one factor in a holistic admissions process. Powell’s opinion walked a tightrope, but it didn’t settle a crucial question:
Should the Constitution treat all racial classifications the same, even when the government is trying to help?
This split the Court (and the country) into two main camps.
One Side: Use the Toughest Test, Always
Some justices believe that any time the government uses race, it should face the strictest legal test: strict scrutiny. This is the constitutional version of “Prove it. And prove it really, really well.”
Why?
The Constitution promises equal treatment.
The 14th Amendment says no state shall deny any person equal protection. It doesn’t say “except when the government has good intentions.” These justices argue that the promise of equality must be consistent no matter the motive.Good intentions can still cause harm.
A policy meant to help one group might end up hurting another. This is where terms like “reverse discrimination” come in. Some applicants (often white or Asian) say they’re unfairly penalized by policies that favor others based on race.If we allow “good” uses of race, who decides what’s good?
Courts worry that once you open the door to race-conscious policies, it becomes hard to close. What one person sees as justice, another might see as bias. So the safest path, they argue, is to treat all racial classifications as suspect.
The Other Side: Context Matters
Other justices take a different view. They say not all uses of race are the same, and the law shouldn’t pretend they are.
The 14th Amendment was written to protect Black Americans.
After the Civil War, the goal wasn’t to create some abstract idea of colorblindness. It was to stop the very real oppression of formerly enslaved people. So race-conscious laws that aim to fix inequality are living up to the Constitution’s original purpose.Affirmative action isn’t discrimination.
These justices argue that helping marginalized communities is different from hurting others. Race-based admissions aren’t about saying white students don’t belong. They’re about recognizing that opportunity hasn’t been equally distributed.Let the people decide.
In a democracy, if voters or elected officials want to fix inequality, shouldn’t courts give them some room to try? It’s the political process argument: when race is used to promote inclusion, maybe courts should defer a bit more.
The Big Question: Who Gets the Final Say?
Even today, courts are divided on how much trust to place in universities. Should schools be allowed to craft diverse classes using race as one of many tools? Or should they be tightly restricted?
Some justices say schools deserve some deference. Others fear that if courts don’t keep a close watch, racial preferences will creep back in through the back door.
It’s a hard balance to strike: between fairness to individuals and justice for groups, between equal treatment and equal opportunity.
Open Questions That Still Haunt the Court
Let’s name them:
Should we trust schools to use race responsibly?
Maybe. But courts still want proof that race is used carefully, not as a shortcut or cover for quotas.
Does diversity justify racial considerations, or just entrench divisions?
Supporters say diversity helps everyone learn. Critics say it keeps race at the center of everything. The Court has mostly said diversity is a compelling goal, but only when race is one small part of a bigger picture.
Should strict scrutiny always apply, even when the goal is to help?
That’s still hotly debated. Right now, the rule is yes: all race-based policies face strict scrutiny. But not everyone on the Court agrees that this should always be the case.
Why This Debate Still Matters
This debate shapes who gets into college. Who gets a scholarship. Who gets hired. It shapes how America thinks about fairness and who gets a seat at the table.
We’ll see in later posts how this debate unfolds in cases like Grutter, Fisher, and Students for Fair Admissions. But at its core, it’s a debate about what equality really means:
Is it treating everyone exactly the same?
Or is it recognizing that our histories are different and that fairness sometimes means treating people differently to level the field?
There’s no easy answer. But the future of affirmative action depends on how the Court chooses to answer that question.
I think that this brings up an interesting about leveling the playing field. I do somewhat agree with Thomas's dissent in Grutter. He brings up the idea that while some minority students are actually admitted on the basis of test scores, merit, and other academic/professional qualifications, others of the same minority are likely admitted due to race. This concept, even today in my opinion, tends to be very harmful to the confidence and success of those minority students.
In a way this brings to mind imposter syndrome. Minority students might constantly question if they actually deserve to be there they are, or, rather if they got there because of their status as a minority race. For this reason, I would lean towards treating all applicants the same and ignoring race altogether.
However, there is a flip side. All too often students of minority backgrounds might face educational challenges prior to applying to institutions of higher education. For this reason, test scores or other factors might not lead to admittance simply on the merits.
At the end of the day, I don't think it is possible to take one of these approaches. The holistic approach, understanding race but not giving it too much weight, seems to be best. Then again, is this really possible? As this still seems to challenge us today (on the basis of race or gender) I don't think this problem will ever complely go away.
I believe, with most issues, the correct answer lies somewhere in the middle of the Use the toughest test vs context matters. It is certainly true that the 14th was written to protect Black Americans but to make the connection that race conscious laws are implemented just to fix inequality oversimplifies the issue and minimizes the significance of the 14th amendment by engaging in similar behavior albeit with a much better motive.
However, the “who decides what’s good” argument is not particularly strong either. Policy invites conflict. Stakeholders will disagree about the supposed benefits regardless of the topic. That does not mean a proposal is automatically suspect just because the topic is controversial.
The most egalitarian scenario may be blind applications (although zip codes and schools attended would make this difficult to implement) where it is impossible to perceive one’s race, thereby making it impossible for race to be either a benefit or hindrance. But, until we advance as a country to become one that is truly equal, where the circumstances of one’s birth do not result in any obstacles on the basis of one’s skin color, then race based policies will likely continue to be used to account for intangibles that could never show up in a transcript.