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Affirmative Action and Diversity in Public
Education - Legal Developments
Nearly a quarter century after the Supreme Court ruling in Regents of the
University of California v. Bakke,1 the diversity rationale for affirmative action in
public education remained a topic of political and legal controversy. Many colleges
and universities established affirmative action policies not only to remedy past
discrimination, but also to achieve a racially and ethnically diverse student body or
faculty. Justice Powell, in his opinion for the Bakke Court, stated that the attainment
of a diverse student body is "a constitutionally permissible goal for an institution of
higher education," noting that "[t]he atmosphere of 'speculation, experiment, and
creation' so essential to the quality of higher education is widely believed to be
promoted by a diverse student body."
In the last decade, however, federal courts began to question the Powell
rationale, unsettling expectations about the constitutionality of diversity-based
affirmative action in educational admissions and faculty hiring decisions. In striking
down the admissions process at the University of Texas School of Law, the Fifth
Circuit in Hopwood v. Texas concluded that any use of race in the admissions process
was forbidden by the Constitution.2 Reverberations of the 1996 Hopwood opinion
are apparent in several subsequent cases, which voided "race conscious" policies
maintained by institutions of higher education as well as public elementary and
secondary schools. Some judges avoided resolving the precedential effect of Justice
Powell's opinion by deciding the case on "narrow tailoring"or other grounds not
dependent on the constitutional status of student diversity as a compelling state
interest.3 But, in Johnson v. Board of Regents, the Eleventh Circuit sided with
1438 U.S. 265 (1978).
278 F.3d 932, 944 (5th Cir.)("Justice Powell's view in Bakke is not binding precedent on the
issue."), cert. denied, 518 U.S. 1033 (1996). See also Lutheran Church-Missouri Synod v.
FCC, 141 F.3d 344, 354 (D.C.Cir. 1998)(stating, without addressing Bakke, that diversity
cannot "be elevated to the 'compelling' level").
3See Brewer v. West Irondequoit Center School District, 212 F.3d 738, 747-49 (2d Cir.
2000)(noting that "there is much disagreement among the circuit courts as to .. .the state of
the law under current Supreme Court jurisprudence," but concluding that, regardless of
Bakke, reducing racial isolation may be a compelling interest under Second Circuit
precedent); Eisenberg v. Montgomery County Public Schools, 197 F.3d 123, 130 (41h Cir.
1999)(explaining that the status of educational diversity as a compelling interest is
"unresolved," and rather than rule on the issue, decided the case solely on narrow tailoring
grounds); Wessmann v. Gittens, 160 F.3d 790, 795, 800 (1st Cir. 1998)(While "[t]he
question of precisely what interests government may legitimately invoke to justify race-
based classifications is largely unsettled," the court concluded defendant's apparent interest
(continued...)
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Dale, Charles V. Affirmative Action and Diversity in Public Education — Legal Developments, report, April 26, 2006; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc811539/m1/4/: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.