Regents v.

Bakke
Brief Fact Summary. The Respondent, Bakke (Respondent), a white applicant to the University of
California, Davis Medical School, sued the University, alleging his denial of admission on racial grounds
was a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States
Constitution (Constitution).

Synopsis of Rule of Law. Although race may be a factor in determining admission to public educational
institutions, it may not be a sole determining factor.

Facts. The University of California, Davis Medical School reserved 16 spots out of the 100 in any given
class for disadvantaged minorities. The Respondent, when compared to students admitted under the
special admissions program, had more favorable objective indicia of performance, while his race was the
only distinguishing characteristic. The Respondent sued, alleging that the special admissions program
denied him equal protection of laws under the Fourteenth Amendment of the Constitution.

Issue.
Is the special admissions program of the University of California constitutional?
Can race be considered as a factor in the admissions process?
Held. The special admissions program is unconstitutional, but race may be considered as a factor in the
admissions process.
Justice Lewis Powell (J. Powell), writing for the court, says that the Supreme Court of the United States
(Supreme Court) should not pay attention to past discrimination in reviewing the policies of the
University, as this is tantamount to allowing political trends to dictate constitutional principles.
J. Powell determines that accepting a minimum number of minorities simply to reduce the traditional
deficit of such individuals in the medical profession is facially unconstitutional, as it gives preference to
an individual on the basis of race alone.
The major determination of the Supreme Court is whether or not racial preference may be used to
promote diversity of the student body. J. Powell argues that setting aside a specified number of minority
slots is not congruent to the purported goal minority students in themselves do not guarantee a
diversity of viewpoints in the educational environment.

Dissent.
Justices William Brennan (J. Brennan), Byron White (J. Brennan), Thurgood Marshall (J. Marshall), and
Harry Blackmun (J. Blackmun) dissent, believing the special admissions program to be constitutional. In
particular, the Justices argue that the racial classification in the present case is remedial, serves an
important government objective and also substantially related to that objective and thus insulated from
the Fourteenth Amendments general prohibition of such classifications.
J. Marshall writes separately in support of J. Brennan, J. White, J. Marshall, and J. Blackmun.
Justice John Paul Stevens (J. Stevens) dissents, citing that Title VI of the Civil Rights Act of 1964 prohibits
the denial of any individual on the basis of race from participation in any program receiving federal
funding. J. Stevens argues that prohibiting white students from participation in the special admissions
program is a direct violation of Title VI.
Concurrence.
J. Brennan, J. White, J. Marshall, and J. Blackmun concur so much as the Supreme Courts opinion allows
race to be considered as a factor in the admissions process. However, the Justices believe that in this
particular example, race should be allowed as a single determining factor.
J. Stevens concurs to the extent that the special admissions program is impermissible. However, J.
Stevens holds that the constitutional issue is not reached, because the federal statutory ground (Title VI)
prohibits the activity directly. Held. The special admissions program is unconstitutional, but race may be
considered as a factor in the admissions process.
Justice Lewis Powell (J. Powell), writing for the court, says that the Supreme Court of the United States
(Supreme Court) should not pay attention to past discrimination in reviewing the policies of the
University, as this is tantamount to allowing political trends to dictate constitutional principles.
J. Powell determines that accepting a minimum number of minorities simply to reduce the traditional
deficit of such individuals in the medical profession is facially unconstitutional, as it gives preference to
an individual on the basis of race alone.
The major determination of the Supreme Court is whether or not racial preference may be used to
promote diversity of the student body. J. Powell argues that setting aside a specified number of minority
slots is not congruent to the purported goal minority students in themselves do not guarantee a
diversity of viewpoints in the educational environment.

Summary of Wygant v. Jackson Board of Education
Facts: School board laid off more-senior white teachers in order to keep less-senior
minority teachers. Gave as justification the desire to alleviate societal discrimination.
Holding: All race-based preferences must be subject to strict scrutiny. The school
board had no compelling interest in alleviating societal discrimination, only prior
institutional discrimination.
But, in this case, even if there was prior institutional discrimination, the racial
classification still wouldnt be sufficiently justified because fails on the second prong
of necessity: it puts too great a burden on innocent parties and therefore isnt
sufficiently narrowly tailored.
Judgment: Unconstitutional.
Comments: OConnor: agrees that remedying societal discrimination isnt a
sufficiently compelling state interest, but believes that a state interest in promoting
racial diversity would be sufficiently compelling.

Fullilove v. Klutznick
448 U.S. 448 (1980)
Squib. The Supreme Court upheld the minority
business enterprise (MBE) provision of the
Public Works Employment Act of 1977. The
MBE required that a certain portion of government
contracts were to be granted to minority-
owned businesses. Chief Justice Burger
wrote that Congress had power to pass the provision
under the Fourteenth Amendment because
past discrimination had placed minority-
owned businesses at a disadvantage in competing
for government contracts. Justice Powell
concurred on the ground that Congress need not
engage in fresh fact-finding for every piece of legislation
if its experiences supported the view
that such legislation was necessary. Justice
Marshall concurred on other grounds. Justice
Rehnquist dissented on the ground that the
government may not afford a person different
treatment solely on account of race. Justice
Stevens dissented, arguing that the policy
presented intractable questions of racial classification.
MARSHALL, BRENNAN, BLACKMUN push for intermediate scrutiny


Adarand Constructors v.
Pea
515 U.S. 200 (1995)
Squib. Congress had enacted the Small Business
Act, which provided certain advantages to
minority-owned businesses in the awarding of
government contracts. After submitting the low
bid but losing the contract to another bidder because
of the Act, Adarand Constructors challenged
the constitutionality of the Act.
OConnor, J. The Courts rulings through Croson
established (1) that any race-based criterion
is subject to strict scrutiny, (2) that the Equal
Protection Clause must mean the same thing
when applied to every individual regardless of
race, and (3) that equal protection is the same
under the Fifth Amendment as under the Fourteenth
Amendment. To the extent that Metro
Broadcasting held that certain benign racial
classifications could be exempted from strict
scrutiny, it is overruled. It cannot be said that
strict scrutiny is strict in theory but fatal in
fact. Indeed, the very point of strict scrutiny is
to distinguish acceptable race-based criteria
from unacceptable ones.
Scalia, J., concurring in part and concurring
in the judgment. The government is
never justified in attempting to remedy discrimination
by applying even more race-conscious
criteria.
Thomas, J., concurring in part and concurring
in the judgment. Strict scrutiny should
apply to all race-conscious criteria regardless of
whether such criteria might be characterized as
benign. Race-based classifications are inherently
discriminatory.
Stevens, J., with whom Ginsburg, J., joins,
dissenting. (Lesser standard of review for affirmative action)
The Court refuses to recognize the
difference between using race-based criteria to
discriminate against minorities and the use of
such criteria to affirmatively remedy the effects
of discrimination. By subjecting all race-based
affirmative-action programs to strict scrutiny,
the Court has made it easier for Congress to
remedy discrimination against women than to
remedy discrimination against racial minorities.

LEFT OFFF
Grutter v. Bollinger
Grutter is white female resident of MI who applied w/ 3.8 GPA and 161 LSAT. She was rejected.
Issue(s): Whether U of Ms Law School admission policy that uses race as a factor violates
14
th
; and whether diversity is a compelling interest justifying the Narrowly Tailored use of race in
the selection process for admission?
Holding: No. Diversity is a compelling state interest that can justify the use of race in university
admissions under a variable critical mass formula, (as an individualized consideration), that is
a narrowly tailored method used to maintain underrepresented minorities in law school. C/Int,
as a proper purpose, are presumed in GF absent a showing of bad faith.
Procedure: Pet filed suit against Law School. D Ct held bench trial re: race as factor in
admission decisions and if consideration of race constituted race-based double standard C: use
of race unlawful. Ct of App Reversed. US Sct. Affirmed.
Rule(s): 14
th
and 42 U.S. C. 2000(d), Title VI 42 U.S. C. 1981. Bakke H: a state has a Subl
interest that may be legitimately served by a properly devised admission program that uses race
or ethnicity, in consideration along with other factors, only to provide diverse student body.
Rationale: The 14
th
protects persons not groups and govt action based on race must be
analyzed under Strict Scrutiny and such actions are constitutional only if narrowly tailored to
further a compelling state interest. Absent judicial inquiry cannot determine if a classification is
benign or remedial vs those that are motivated by racial inferiority or simple racial politics.
Satisfaction: when race-based action is necessary to further compelling St Int, that action does
not violate Constl guarantee of E P so long as NT.
J. Powell, Tradition and experience support the view that the contribution of diversity is
substantial, but race is only one factor b/c the type of diversity that aids a compelling st int
encompasses other qualifications and characteristics.
Even under St/Scr a degree of deference is given to Us academic decisions w/i Contl limits. A
schools interest in diversity is not limited to a specific percentage of a racial or ethnic group b/c
that amts to impermissible Racial Balancing. Diversity and Selection must be carefully
balanced. Ensuring effective participation by all racial and ethnic groups in the civic life of our
Nation remains an important and essential Govt objective. Critical Mass furthers the C St Int.
To be Narrowly Tailored, a race-conscious admissions program cannot use a quota system, and
may consider race ONLY as a plus factor w/o insulating the individual from comparison with
other candidates. Quotas impose a fixed # or % that must be reached and cannot be
exceeded. Use of the Critical Mass formula does not transform the program into a quota
system b/c attention to numbers, w/o more, is not the same as a rigid quota requirement. But,
even if system is not a quota system or its equivalent, race cannot be a defining feature only a
plus.
NARROWLY TAILORED.
Narrowly tailored does require GF consideration of workable race-neutral alternatives, not
exhaustion of every race-neutral alternative. NT does not require choice btwn maintaining
reputation for excellence or fulfilling a commitment to provide educationl ops for all races.
TIME: Govtl use of race must have a sunset provisions and periodic reviews25yrs the use of
racial preferences will no longer be necessary to further the interests of today.
DISSENT: Critical mass is really racial balancing and this methodology is not narrowly tailored
to the interested asserted b/c the actual program bears no relation to the asserted goal. Resp
must show that their use of race FITS a C/St Int with greater precision than any alternative
means. The record indicates that the admission practices among underrepresented minorities
differs dramatically and cannot be defended under any consistent use of the term critical
mass.
From 1995-2000 the % of admitted applicants who were member of an underrepresented
minority group closely matched the % of individuals in the schools applicant pool who were
from the same group. Here the school failed to explain its actual admission policy and thus, the
Ct must conclude its admission practices serve to offer admission to members of selected
minority groups in proportion to their statistical representation.
J. Kennedy: The Ct does not use Strict Scrutiny b/c it failed to address how the school actually
implements its admission policy.
J. Thomas: Racial discrimn is not a permissible solution to the self-inflicted wounds of this
elitist admission policy. Diversity is the triggering mechanism a school uses to obtain
educational benefits, it is not an end of itselfeducational benefits are the end or the C/St Int.
The Court uphold the use of racial discrimn as a tool to advance a Law Schools Int in offering a
marginally superior education while maintaining an elite institution. Marginal improvements in
legal education do not qualify as a C/St. Int, merely good policy. Mich has no compelling state
interest in having a law school at all, let alone an elite one. The only state interest that are
justifiable by operating a public law school is the education of that states citizens and training of
that states lawyers. U of M LS does little toward either. Only 6% of applicants to Mi Bar
graduated from U of M. That few states maintain an elite law school raises a strong inference
that there is nothing compelling about this interest.
Pets A: Schools plan is not narrowly tailored b/c race-neutral means exist to obtain the same
resulteducational diversity.
Resps A: Educational benefits flow from a Diverse Student Body. Diversity is achieved here
w/o any set % or # of minority students, but consideration of applicants race is used among
other factors to ensure critical mass of underrepresented minority students.
Critical mass means: meaningful #s or meaningful representation that means a number that
encourages underrepresented minority students to participate and not feel isolated, but there is
no #, %, or range of #s or %s.

Summary of Gratz v. Bollinger, 539 U.S. 244 (2003)
Facts: 2 White residents of MI applied to the U of M and were denied admission by the
Universitys Office of Undergraduate Admissions-OUA. The OUA Counselors used the schools
guidelines in rendering the decisions. OUA relies on a number of factors, including race.
Students representing racial minority groups are considered underrepresented minorities and
OUA admits almost every qualified applicant from this classification. In 1995 and 96 applicants
were subject to different admission outcomes based on race or ethnic status. Gratzs racial and
academic score placed her w/i a category calling for postponed decision, but a minority
applicant w/ same academic score required admission. 1997 OUA changed policies where
applicants recd points which disfavored Hammacher over a similarly situated racial minority.
1999-2000 underrepresented minorities were automatically awarded 20 out of 150 points, plus
ARC review.
Issue(s): Whether the U of Ms use of racial preferences in undergraduate admission violates
the E P Cl of the 14
th
?
Holding: Yes, b/c the Us use of race in its current freshman admission policy is not narrowly
tailored to achieve respondents asserted compelling state interest in Diversity, the policy
violates E P Cl of 14
th
as well as Title VI 42 U.S.C. 1981.
Procedure: On Cross Summ J, D Ct upheld OUA guidelines and granted Pet students motion
regarding undergraduate admission program from 1995-1998; granted Resp motion re: program
from 1999-2000. On Interlocutory Ct App, en banc, heard the case but did not issue decision
yet. US S.Ct Reversed portion of decision upholding Responds Summary.
Rule(s): 14
th

Rationale: The admission Policy has not individualized considerations when every minority
applicant is given 1/5 of the total points required and non-minorities are not given the same
amount. The only individualized consideration given is the factual review by ARC to determine
whether an applicant is an underrepresented minority. An award of 20pt makes race a decisive
factor.


Parents involved in community schools

Facts
The schools in these cases used raced to assign students to particular schools so that the
racial composition of each school fell within a predetermined range for the district. In
Seattle, students could rank the schools they wanted to attend. Popular schools would need
to decide which students would get it. The first consideration was if a sibling currently
attended. If a tie persisted, then race was considered. Finally, any continuing tie was broken
based on geographical proximity.

Jefferson Count Public Schools (in KY) achieved unitary status (eliminated segregation in
schools to the greatest practicable extent) in 2000. In 2001, the school allowed students to
choose where they attend school. The plan required nonmagnet schools to maintain a
minimum African-American enrollment of 15%, and a maximum of 50%.

Procedural History
Court of Appeals upheld this policy.

Issues
May a school, that was never segretated or had achieved unitary status, classify students by
race for the purpose of assigning schools?

Holdings & Court Order
No.

Reasoning (Roberts)
There are two interest that qualify as compelling to justify racial classifications by schools.
The first is remedying the effects of past discrimination. Seattle never segregated schools,
so there was nothing to remedy. Because Jefferson county had reached unitary statues, it
had already remedied the past segregation, and cant rely on that interest now.

The second interest is the diversity in higher education. Grutter said that it is permissible to
consider race when admission considered each applicant as an individual, not just as part of
a minority group. In the present cases, race is determinative by itself and the plans dont
consider the applicants on an individual basis. Under Seattles plan, a school comprised of
50% whites and 50% Asian-Americans would be fine, but a school with 30% Asian-
Americans, 25% African Americans, 25% Latino, and 20% whites would be unacceptable.
Additionally, the schools didnt consider other alternative policies.

This Court doesnt need to resolve the debate about the social or educational benefits of
diverse student bodies, because the plans are not narrowly tailored to achieve such goals.
The plans only seek racial balance, which this court has repeatedly held to be illegitimate.
Allowing racial balancing would forever entrench the relevance of race to American life and
government decisionmaking. Before Brown, race determined which schools children could
attended. The districts in this case have not demonstrated that this should be allowed once
against, despite being done for different reasons. The way to stop discrimination on the
basis of race is to stop discriminating on the basis of race.

Thomas, concurring: While there is a risk of racial imbalance, there is not risk of
resegregation occurring in these cities. They have no need to remedy past segregation, and
using race to assign schools do not serve any compelling interest. There is no apparent
education benefit from racial balancing, much less that racial balancing is necessary to
minority achievement.

Kennedy, concurring in part and the judgment: the plurality opinion is too dismissive of
interest the government has in ensuring all people have equal opportunity, regardless of
race. The interpretation suggests that the Constitution requires school authorities accept
racial isolation in school, which is mistaken. Schools should be permitted to work toward
bringing together students with divese backgrounds and races through race conscious
mechanisms that dont define students just by their race.

The dissents general conclusions are unlimited in so far as they could apply to government
classification outside of the context of schools. There is no reason Congress couldnt apply
the Seattle or Jefferson policies nationwide by exercising its spending authority if the
dissents rationale is accepted.

Breyer, with Stevens, Souter, and Ginsburg, dissenting: From 1968-1980, the number of
black students in schools where minorities were in the majority went from 77-63%.
However, by 2000, that rose to 72%. Thus it appears that resegregation has occurred.

In Swann, this court state that the government may utilize race conscious measures to
improve race conditions, even when it is not constitutionally required. The framers of the
equal protection would probably have understood the difference between the race conscious
criteria used to promote equal protection and that used to defy it.

The compelling interest in this case has three elements. First the element to remedy
historical consequences of segregation. Second, overcome segregations detrimental effects
on education (which is supported by well established evidence that integrated schools
positively affects education). Third, there is an interest in having an educational community
that is a diverse as our country.

Several factors lead to the conclusion that these plans are narrowly tailored. First, racial
classifications only set the outer limits of broad ranges within plans that determine schools
assignments primarily on other elements. Second, these are policies are more practical and
more narrowly tailored than other race-conscious alternatives (such as Gruter). Third, the
schools narrowly tailored these plans based on local experience and community input.
Likewise, this Court has recognized that weight should be given to a schools expertise in
such matters because judges are not properly suited to be school administrators.

The plurality opinion is legally flawed. The pluralitys opinion threatens opening the flood
gates of race based litigation due to the hundreds of state and federal racial classifications.
Resegregation, while not caused by the schools, is on the rise. The courts are not authorized
by the constitution to solve these problems. This Court has recognized that the Constitution
permits the people to work through their representatives to select the racial classifications
to be used.

EXAM- CLOSED BOOK
Mult choice usually narrow points (understanding of specific points in the case (the law on
a specific point most recent controlling opinion) concurring and dissenting opinions
short answer (tests that emerge out of the cases)
History is important in constitutional law (history of commerce clause jurisprudence)
Have a picture in your mind of the arguments on all sides
Essay
Usually doesnt ask typically law exam fact-scenario (issue spotting) type questions