The United State Supreme Court’s review of affirmative action admissions policies in Grutter v. Bollinger and Gratz v. Bollinger confirms that the Court applies a different strict scrutiny test for challenges to affirmative action programs aimed at improving diversity in the classroom than the test it applies to challenges to programs aimed at achieving racial equality in the workplace. In reviewing challenges to two affirmative action admissions policies, the Court confirmed that there is a compelling governmental interest in achieving diversity in the classroom. The Court also articulated a “narrowly tailored” test that is arguably more appropriate for evaluating challenges to affirmative action programs aimed at achieving diversity in the classroom than those designed to increase racial equality in the workplace. The Court has since required that a race-conscious program not be upheld under the Constitution unless it passes the “strict scrutiny test,” first articulated by Justice Powell in Regents of the University of California at Davis v. Bakke. Post-Bakke challenges more clearly defined the test, requiring state or federal entities defending any race-conscious program to demonstrate that there was a compelling governmental interest in the program, and to establish that the program was narrowly tailored to meet that interest. This article identifies the new strict scrutiny test and considers the reason for creating a separate definition of strict scrutiny for evaluating affirmative action policies that achieve diversity in the classroom. Part II reviews constitutional challenges to affirmative action policies prior to Grutter and Gratz, and will discuss the split in the circuits that resulted from the Court’s failure to endorse Justice Powell’s definition of a compelling governmental interest in Bakke. Part III will provide an analysis of the Grutter and Gratz decisions, with a particular focus on each Court’s discussion of the strict scrutiny test. Part IV will define the Court’s strict scrutiny test for evaluating affirmative action admission policies, and will highlight why it is appropriate to use separate tests for challenges to affirmative action programs aimed at achieving diversity in the workplace and those aimed at achieving diversity in education.
Leslie Y. Garfield,
Back to Bakke: Defining the Strict Scrutiny Test for Affirmative Action Policies Aimed at Achieving Diversity in the Classroom,
83 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol83/iss3/2