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Contemporary Affirmative Action: An Overview of Laws and Supreme Court Decisions

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Updated September 30, 2011

Even in the new millennium, debates rage about the pros and cons of affirmative action. What’s indisputable, however, is that the practice has endured a turbulent history. How has this past affected contemporary affirmative action?

Introduced by President Kennedy in 1961 to counteract the discrimination that civil rights laws couldn’t, it’s ironic that affirmative action has repeatedly been challenged in court for causing bias against whites, or what’s commonly known as “reverse discrimination.”

So, what’s the current state of affirmative action? A review of the major laws and court decisions involving it from 2000 to the present will provide a better picture.

Florida Passes Admissions Race Ban

Florida entered the new millennium by prohibiting colleges from considering the race of applicants in the admissions process. On Feb. 22, 2000, the state Legislature passed the facet of the “One Florida” initiative related to education. Jeb Bush, then governor, created the initiative to end affirmative action throughout the state.

Michigan Faces Affirmative Action Challenge

Affirmative action advocates faced another setback June 23, 2003, when the U.S. Supreme Court decided Gratz v. Bollinger. In a 6-3 decision, the court ruled in favor of Gratz, a white student denied undergraduate admission to the University of Michigan. According to the court, the university’s point-based affirmative action policy in undergraduate admissions violated the equal protection clause of the 14th Amendment.

For acceptance into the institution, applicants needed to score at least 100 points on the school’s 150-point admission scale. But the university automatically gave applicants from underrepresented racial groups 20 points. That amounted to eight more points than applicants of all backgrounds received for obtaining a perfect SAT score, making race the most influential factor in the admissions process.

Different Take on Law School Policy

The Supreme Court decided Grutter v. Bollinger along with Gratz v. Bollinger on June 23, 2003. While Gratz involved University of Michigan’s undergraduate affirmative action policy, Grutter involved the university’s use of race in law school admissions. In a 5-4 decision, the court upheld the law school’s affirmative action plan because it furthered “a compelling interest in obtaining the educational benefits that flow from a diverse student body.”

Whereas the university’s undergraduate affirmative action policy amounted to a quota system of sorts, its law school considered race as well as many other factors when determining which students to accept. In deciding in favor of the University of Michigan, the court drew on 1978 Supreme Court case Regents of the University of California v. Bakke in which it was decided that race could be considered in admissions, but quotas were illegal.

Michigan Imposes Statewide Affirmative Action Ban

Michigan continued to make headlines related to affirmative action on Nov. 7, 2006, when 58% to 42% of voters decided in favor of the Michigan Civil Rights Initiative, also known as Proposal 2. The initiative, which became law Dec. 22, 2006, banned state entities from using gender and race preferences in areas such as college admissions, public employment and public contracting. The legality of Prop. 2 was challenged in federal court in 2008, but a judge decided that the initiative didn’t violate the Constitution. On July 1, 2011, however, a federal appeals court reversed Michigan's ban on affirmative action, arguing that it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” Michigan Attorney General Bill Schuette said he plans to appeal the decision.

School Segregation Revisited

Fifty-two years after the Supreme Court declared segregation illegal in Brown v. Board of Education, the high court decided that it was unconstitutional for students to be assigned to schools based on race to maintain diversity. The Supreme Court issued its judgment in a split 5-4 decision on June 28, 2007, in Parents v. Seattle and Meredith v. Jefferson. The case involved programs in Seattle and Louisville, Ky., which took into account the race of students when placing them in schools to achieve integration. The justices decided that the Constitution only requires school districts to desegregate if they have practiced racial discrimination, as in Brown v. Board. In this case, however, the districts weren’t to blame for the lack of diversity in their schools and, thus, overstepped their bounds by setting out to integrate them.

Colorado and Nebraska Weigh in on Affirmative Action

Colorado made history on Nov. 4, 2008, when the state’s voters decided against banning affirmative action there. This was the first time voters in a state decided to favor race- and gender-based preferences. Voters in California, Michigan and Washington had previously voted to ban affirmative action in their states. As Colorado made history on Election Day 2008, however, Nebraska voters decided 58% to 41% to ban affirmative action there.

In Closing

What’s in store for affirmative action? In the new millennium, patterns have already emerged. Expect states to continue to strike down gender- and race-based preferences, although a few may follow Colorado’s lead and vote to uphold them. Expect race-based admissions policies to continue to face challenges as well. However, the Supreme Court’s ruling history indicates that policies which consider a student’s race along with other factors will likely be upheld.

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