Race, Racism and the Law 
Speaking Truth to Power!!

Leland Ware, Tales From The Crypt: Does Strict Scrutiny Sound The Death Knell For Affirmative Action In Higher Education?, 23 J.C. & U.L. 43-90, 84-88 (1996) Copyright (C) 1996 by the National Association of College & University Attorneys; Leland Ware. 

Affirmative action in the educational setting is predicated on a justification that is different from the rationale used in employment or public contracts. The importance of promoting student body diversity was one of the key lines of reasoning in Justice Powell's opinion in Bakke. The recognition of the desirability of diversity in academic environments still retains a substantial amount of legitimacy even as skepticism of other forms of affirmative action grows. The theory of diversity is grounded on the principle of academic freedom. In the case of admissions, however, the desire for a diverse student body collides with the meritocratic belief that the brightest students are entitled to be favored over those who are less gifted. 

Meritocracy is premised on an assumption that merit can be accurately measured through a combination of grades and standardized test scores. An inordinate faith in test scores is embraced by almost all except those who design and administer standardized examinations. Test scores are notorious for their inability to accurately predict a student's performance. Not only do the designers of standardized examinations lack the ability to see into the future, they also have the benefit of years of studies which prove beyond doubt that they lack that ability. The strongest claim that can be made for standardized tests is a correlation between performance and scores at the very highest and lowest levels. In the vast middle range, where the majority of students fall, the predictive value is no more reliable than the flip of a coin. Standardized tests were not widely used to screen students until after World War II, when the number of students seeking postsecondary education outstripped the capacities of colleges and universities to satisfy the demand. The use of standardized tests and grades have long been known to have a disparate impact on minority applicants. In short, the question of who should be admitted to a particular college or university is inherently subjective. The assumption that affirmative action is unfair to whites is premised on an erroneous belief that test scores are not biased against minorities. . . Adarand, of course, addressed affirmative action in the context of federal "set aside" programs which were based on cases which held that strict scrutiny did not apply to the federal government. Adarand repudiated that foundation, and Croson had already applied strict scrutiny to programs established by state and local governments. Adarand did not consider whether student body diversity constitutes a sufficiently compelling justification for the use of race- conscious admissions criteria. It provides no guidance as to what constraints might be placed on affirmative action programs developed by private colleges and universities. 

Croson required courts to apply strict scrutiny to affirmative action programs developed by state and local governments. The courts in Podberesky and Hopwood applied strict scrutiny to the affirmative action programs involved in those cases since the University of Texas and the University of Maryland are state-supported institutions. Adarand extended the Croson rationale to affirmative action programs established by the federal government. Since private institutions are not instrumentalities of the state or federal governments, the constraints imposed by Croson and Adarand do not apply to them by virtue of the "state action" requirement of the Fourteenth Amendment. Anti- discrimination obligations are imposed on private institutions by Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972 and other statutory provisions which prohibit discrimination by private institutions that are recipients of federal assistance. Private colleges and universities have relied on the decision in Bakke as the justification for implementing affirmative action programs. While it is clear that neither Croson nor Adarand applies directly to private institutions (and thus has no immediate effect), both cases reflect a growing skepticism of affirmative action. 

In Hopwood, the diversity rationale (to the extent race is involved in diversity) was squarely rejected. Strict scrutiny does not apply to private colleges and universities, but the problem for these institutions is whether the promotion of racial diversity will continue to be seen as an adequate justification for the creation of affirmative action programs. If Justice Powell's reasoning in Bakke continues to influence courts, race can legitimately be used as a plus factor in a multi- component selection process to achieve the goal of student body diversity. The remaining question is whether a majority of the current Supreme Court Justices will remain faithful to Justice Powell's analysis in Bakke, whether it will agree with the panel in Hopwood, or whether it will find some middle ground between the two positions. 

States that practiced de jure segregation face even more uncertainty. The Supreme Court held in Fordice that those states have a duty to eliminate all vestiges of segregation, but those within the Fourth and Fifth Circuits cannot do so unless they can somehow reconcile this obligation with the limitations imposed by Podberesky and Hopwood. Meanwhile, who is admitted to what university by what means has become a highly questionable process.