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Topic 3.11 Government Response to Social Movements AP Government

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The 1964 Civil Rights Act Explained: US History Review

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Title IX of the Education Amendments of 1972 (Title IX) prohibits sex (including pregnancy, sexual orientation, and gender identity) discrimination in any education program or activity receiving federal financial assistance.
What conduct is prohibited by Title IX?
The Title IX regulation states that "except for provided elsewhere in this part, no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives ... Federal financial assistance ....

(b) Specific prohibitions. Except as provided in this subpart, in providing any aid, benefit, or service to a student, a recipient shall not, on the basis of sex:

(1) Treat one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service;

(2) Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner;

(3) Deny any person any such aid, benefit, or service;

(4) Subject any person to separate or different rules of behavior, sanctions, or other treatment;

(5) Discriminate against any person in the application of any rules of appearance;

(6) Apply any rule concerning the domicile or residence of a student or applicant, including eligibility for in-state fees and tuition;

(7) Aid or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person which discriminates on the basis of sex in providing any aid, benefit or service to students or employees;

(8) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity." 45 C.F.R. § 86.31

The full text of HHS's Title IX regulation can be found here.
What are some examples of sex discrimination?
Under Title IX, sex discrimination can take many forms, such as:

1. Denying admission of a person into an educational or training program on the basis of sex;

2. Disqualifying a person for a research position on the basis of sex when it is irrelevant to ability to perform the job;

3. Providing unequal educational resources to students of one sex compared to another;

4. Engaging in gender -based or sexual harassment such as making unwelcome sexual comments, advances, and/or name-calling on the basis of sex.

Federal courts and agencies have found that Title IX prohibits sex-based harassment, including sexual harassment, when such harassment is sufficiently serious as to limit the ability to participate in and benefit from a program or activity. Click here for more information on sex-based harassment.

Some examples of sexual harassment by entities receiving HHS funds include but are not limited to:

1. Unwelcome and inappropriate advances to students and employees of a research lab funded by HHS made by professors, employees, researchers, teachers, and/or students;

2. Sexual assault of a student or employee by a doctor or other medical staff in a student sports medicine program or other clinical setting that receives HHS funding.

Who is covered by Title IX?
Title IX prohibits sex discrimination in the education programs and activities of entities that receive federal financial assistance. These programs and activities include "all of the operations of ... a college, university, or other postsecondary institution, or a public system of higher education." 20 U.S.C. § 1687(2)(A); see also 45 C.F.R. § 86.2(h). Therefore, Title IX's nondiscrimination protections apply to student recruitment, admissions, educational programs (including individual courses), research, housing, counseling, financial and employment assistance, health and insurance benefits and health services. The federal agency that provides the federal financial assistance has jurisdiction over Title IX complaints.

The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services has jurisdiction over Title IX claims of discrimination against entities that receive federal financial assistance through HHS. Such entities include:

1. Colleges and universities, including all of the programs they operate, regardless of which program receives federal financial assistance from HHS. For example, a university would be covered by Title IX if:

1. The university's medical center receives Medicare reimbursements from the Center for Medicare & Medicaid Services;

2. The university's biology department receives grants from the National Institutes of Health;

3. The university's medical, dental, or nursing programs receive funds from the Health Resources and Services Administration.

2. Education programs and activities of entities that are not colleges or universities but receive federal financial assistance from HHS for their educational program or activity. For example:

1. Head Start educational programs for young children funded by the Administration for Children & Families

2. Hospital professional training clinical programs that receive HHS funding;

3. Fatherhood programs providing job training, financial education and other educational programs that receive grants through the Administration for Children & Families.

HHS OCR also has jurisdiction under Section 1557 of the Affordable Care Act (Section 1557) to investigate complaints of sex discrimination in health programs and activities of recipients of federal financial assistance and other covered entities. Click here for more information about Section 1557.
What should I do if I believe I have been discriminated against under Title IX?
You can file a complaint with OCR if you have been subjected to sex discrimination, including sexual harassment, in an education program or activity that may have received HHS funds.

We will promptly inform you as to whether we have jurisdiction to investigate your complaint. If we determine that the entity named in your complaint does not receive HHS funds, but receives funds from a different federal agency, we will forward the complaint to the appropriate agency.

Certain types of complaints may be forwarded to another agency. The U.S. Department of Justice (DOJ) regulations generally require referral of individual employment complaints of sex discrimination to the U.S. Equal Employment Opportunity Commission (EEOC). If there is a pattern and practice of employment discrimination or if the complaint alleges discrimination in employment and in other practices of a recipient, then OCR can investigate the complaint.

If you are not sure about whether OCR has jurisdiction to investigate your complaint, file a complaint with our office and we will help answer your questions through the complaint intake process and our initial evaluation of the complaint. For more information on how to file a complaint, click here.

Please note that Title IX specifically prohibits retaliation for filing a discrimination complaint. When investigating a complaint, OCR informs all recipients of the prohibition on retaliation. In addition, during the complaint process, OCR will seek the complainant's consent to reveal his/her identity or identifying information, if necessary, to investigate the complaint. Consent is voluntary, and it is not always needed to investigate a complaint. Failure to provide consent, however, may make it difficult to investigate some aspects of the complaint.
How does OCR resolve my complaint?
If OCR determines that it has jurisdiction, OCR will investigate the complaint or, in some cases, refer the complaint to an agency with joint jurisdiction. When OCR identifies a violation or compliance concern, it will work with the recipient to achieve compliance with the law. Depending on the scope of the changes required, complaints can be resolved through voluntary compliance letters or agreements requiring the recipient to develop policies, monitoring, notification, and training, which also resolve the specific incidents alleged in the complaint. If voluntary compliance cannot be achieved, OCR can issue a formal findings letter and refer the case to DOJ or begin administrative proceedings to revoke federal funds.

What are some examples of OCR enforcement actions under Title IX:

*This content is undergoing a Section 508 review. If you need immediate assistance accessing this content, please submit a request to OCRMail@hhs.gov. Content will be updated pending the outcome of the Section 508 review.
Where can I get more information?
Resources for those receiving or affected by NIH-funded STEM and research:

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Title IX of the Education Amendments of 1972 prohibits sex discrimination in any education program or activity receiving federal financial assistance.

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50 Years of the National Organization for Women

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Video created for the annual national conference of NOW, looking back at 50 years of progress for the rights of women and looking ahead to even more.

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Balancing MAJORITY and MINORITY Rights [AP Gov Review, Unit 3 Topics 11 & 12 (3.11-12)]

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Brown v. Board of Education | BRI's Homework Help Series

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Kids have been riding buses to get to school since the 1920s. But the practice became politically charged when desegregation busing, starting in the 1950s, attempted to integrate schools.

The 1954 U.S. Supreme Court landmark ruling in Brown v. Board of Education of Topeka, Kansas unanimously found racially segregated schools to be unconstitutional and in violation of the equal protection clause of the 14th Amendment.

In that case, one plaintiff, Linda Brown, a third-grader, had been forced to walk six blocks to catch the bus to take her to a Black school even though a white school was seven blocks from her front door.

A few years later, desegregated busing began in some districts to take Black and Latino students to white schools, and bring white students to schools made up of minority students. The controversial program was devised to create more diverse classrooms and close achievement and opportunity gaps.

Charlotte Busing Seen as a Success

In 1971, the Supreme Court's ruling in Swann v. Charlotte-Mecklenburg Board of Education unanimously upheld busing. The decision effectively sped up school integration, which had been slow to take root.

After the ruling, school integration in Charlotte, North Carolina was lauded as a success, with schools across the country looking to the city as an example of how to implement desegregation.

Research by Roslyn Mickelson, a sociologist at University of North Carolina at Charlotte, showed that between 1971 and 2002, the majority of Charlotte-Mecklenburg Schools students attended racially desegregated schools and achievement for all students improved.

"Charlotte-Mecklenburg's proudest achievement of the past 20 years is not the city's impressive new skyline or its strong, growing economy," a 1984 editorial in The Charlotte Observer noted. "Its proudest achievement is its fully integrated schools."

Protests Turn Violent in Boston

Court-ordered busing faced a tougher battle in Boston after U.S. District Judge W. Arthur Garrity ordered the city's public schools to desegregate in June 1974. Protests in the New England city erupted and persisted for months, sometimes turning violent.

"More than 400 court orders would be required to carry out the busing plan over the next decade," the Boston Globe reported in 2014. "Thousands of students would flee the city schools. White enrollments would plummet. Education would continue to suffer. Many of those sent to distant schools dropped out and never graduated. Decades later, the violent start of busing would widely be seen as the worst moment in the city's history."

Boston wasn't the first city to experience a busing backlash. Court-ordered busing efforts drew immediate protests across the country, beginning in New York in 1957, and fanning out to cities like Baltimore, Maryland, Pontiac, Michigan and in Louisville, Kentucky.

Voluntary Busing Programs Peak in 1980s

Busing programs became voluntary in many communities following the passage of the General Education Provisions Act of 1974, which prohibits federally appropriated funds for busing. Berkeley, California was among the cities that continued a voluntary busing program. The plan, which led future Vice President Kamala Harris-then a kindergartner-to attend a school outside her neighborhood in 1969, quickly changed the racial demographics of the city's schools.

Voluntary busing programs continued into the 1970s and peaked in the early 1980s. The trend toward increased integration began to shift, however, in the 1990s, when a series of court rulings released school districts from court-ordered desegregation plans, deeming them no longer necessary.

Courts even began to tamp down on local, voluntary busing programs. A 2007 Supreme Court ruling in Parents Involved in Community Schools vs. Seattle School District #1, limited the ways in which districts can promote desegregation.

Historians Mixed on Busing's Legacy

In his book, Why Busing Failed: Race, Media, and the National Resistance to School Desegregation, Matthew Delmont, a professor of history at Dartmouth College, writes that the hot-button issue of the busing crisis was not about busing but "about unconstitutional racial discrimination in the public schools. ... Judges ordered 'busing' as a remedy in northern school districts such as Boston, Denver, Detroit, Kansas City, Las Vegas, Los Angeles, and Pontiac that were found guilty of intentional de jure segregation in violation of Brown v. Board and the Fourteenth Amendment."

Black leaders were mixed on the practice. Activist Jesse Jackson, NAACP officials and U.S. Rep. Shirley Chisholm were among those who supported busing efforts and policies. But many Black nationalists argued that focus should instead be placed on strengthening schools in Black communities.

A February 1981 Gallup Poll found 60 percent of Black Americans were in favor of busing, while 30 percent were opposed to it. Among white people surveyed, 17 percent favored busing, and 78 percent were against it.

"It ain't the bus, it's us,'' Jackson told The New York Times in 1981. ''Busing is absolutely a code word for desegregation. The forces that have historically been in charge of segregation are now being asked to be in charge of desegregation.'"

Still, some scholars see desegregation busing as a success. A 2011 study by Rucker Johnson, a professor at the University of California, Berkeley's Goldman School of Public Policy, found that school desegregation significantly increased educational and occupational achievements, college quality and adult earnings for Black students. It also reduced the probability of incarceration, and improved adult health status. Among white students, Johnson found desegregation had no measurable effect.

Despite the results, desegregation busing remained limited. In the end, Delmont writes, the court-ordered busing effort, which applied to fewer than 5 percent of the nation's public school students, "failed to more fully desegregate public schools because school officials, politicians, courts and the news media valued the desires of parents more than the rights of Black students."

Today, many school districts across the country remain largely segregated. According to a 2019 report by the nonprofit, EdBuild, more than half of U.S. children attend schools in districts where the student population is either more than 75 percent white or more than 75 percent nonwhite.

Fact Check

We strive for accuracy and fairness. But if you see something that doesn't look right, click here to contact us! HISTORY reviews and updates its content regularly to ensure it is complete and accurate.

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What Led to Desegregation Busing-And Did It Work? | HISTORY

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After a 1954 ruling declared that segregated schools were unconstitutional, a decades-long effort to integrate them through busing was often met with violent protests.

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Petitioner

Masterpiece Cakeshop, Ltd.; and Jack C. Phillips

Respondent

Colorado Civil Rights Commission; Charlie Craig; and David Mullins

Advocates

Noel J. Francisco Solicitor General, US Department of Justice, for the United States as amicus curiae supporting petitioners

Facts of the case

In July 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that its owner, Jack C. Phillips, design and create a cake for their wedding. Phillips declined to do so on the grounds that he does not create wedding cakes for same-sex weddings because of his religious beliefs. Phillips believes that decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages.

Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA), §§ 24-34-301 to -804, C.R.S. 2014. After the Division issued a notice of determination finding probable cause, Craig and Mullins filed a formal complaint with the Office of Administrative Courts alleging that Masterpiece discriminated against them in a place of public accommodation in violation of CADA.

The Administrative Law Judge issued a written order finding in favor of Craig and Mullins, which was affirmed by the Colorado Civil Rights Commission. On appeal, the Colorado Court of Appeals subsequently affirmed the Commission's ruling.

Question

Does the application of Colorado's public accommodations law to compel a cake maker to design and make a cake that violates his sincerely held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment?

Conclusion

7-2 decision for Masterpiece Cakeshop, Ltd.
majority opinion by Anthony M. Kennedy

The Colorado Civil Rights Commission's conduct in evaluating a cake shop owner's reasons for declining to make a wedding cake for a same-sex couple violated the Free Exercise Clause.

The Court reversed in a 7-2 decision, holding that the Colorado Civil Rights Commission's conduct in evaluating a cake shop owner's reasons for declining to make a wedding cake for a same-sex couple violated the Free Exercise Clause.

The Court explained that while gay persons and same-sex couples are afforded civil rights protections under the laws and the Constitution, religious and philosophical objections to same-sex marriage are protected views and can also be protected forms of expression. The Colorado law at issue in this case, which prohibited discrimination against gay people in purchasing products and services, had to be applied in a neutral manner with regard to religion. The majority acknowledged that from Phillips' perspective, creating cakes was a form of artistic expression and a component of his sincere religious beliefs.

The Court also explained that in 2012, the year that Phillips refused his services to Craig and Mullins, the law in Colorado and across the country with regard to same sex marriage was much more unsettled than it became after United States v. Windsor, 570 US 744 (2013) and Obergefell v. Hodges, 576 US ___ (2015). At the time, the State Civil Rights Division had also concluded in at least three other cases that bakers had acted lawfully in declining to make cakes that included messages they disagreed with, specifically messages demeaning gay persons. Thus it was not unreasonable for Phillips to believe that he was acting lawfully at the time, and his claims before the Commission were entitled to neutral treatment.

However, the Court stated that Phillips did not receive this neutral treatment, with members of the Commission showing clear and impermissible hostility toward his religious beliefs. The Court explained that commissioners' comments disparaging Phillips' beliefs and characterizing them as rhetorical were inappropriate, though these comments were not mentioned or disavowed in subsequent legal proceedings. The Court concluded that these comments cast doubt on the fairness of the Commission's consideration of Phillips' claims. The Court also pointed out that disparities between Phillips' case and those of other bakers with objections to making cakes with anti-gay messages, and who were victorious before the Commission, further reflected hostility toward the religious basis for Phillips' position.

The Court concluded that the Commission's actions violated the State's duty under the First Amendment not to use hostility toward religion or a religious viewpoint as a basis for laws or regulations. Under the facts of this case, the Court determined that Phillips' religious justification for his refusal to serve Craig and Mullins was not afforded the neutral treatment mandated by the Free Exercise Clause.

Justice Ginsburg authored a dissenting opinion, in which she was joined by Justice Sotomayor, stating that neither the Commission's comments regarding Phillips' religious views nor its alleged disparate treatment of bakers objecting to making cakes with anti-gay messages justified ruling in favor of Phillips.

Justice Kagan filed a concurring opinion, joined by Justice Breyer, in which she agreed with the majority that the Commission had not given neutral treatment to Phillips' religious views, but declined to assign any significance to the Commission's treatment of bakers who refused to create cakes with anti-gay messages because she believed that this did not violate the Colorado law at issue in Phillips' case.

Justice Gorsuch also filed a concurring opinion, joined by Justice Alito, in which he argued that the cases of Phillips and the bakers who objected to using anti-gay messages in their baking were quite similar, and the Commission acted inappropriately in treating them differently.

Justice Thomas filed an opinion concurring in part and concurring in the judgment, and was joined by Justice Gorsuch. Thomas argued that an order requiring Phillips to bake a wedding cake for a same-sex couple would violate his First Amendment rights.

"Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission." Oyez, www.oyez.org/cases/2017/16-111. Accessed 23 Mar. 2021.

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Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

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Masterpiece Cakeshop, Ltd.; and Jack C. Phillips Colorado Civil Rights Commission; Charlie Craig; and David Mullins Noel J. Francisco Solicitor General, US Department of Justice, for the United States as amicus curiae supporting petitioners In July 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that its owner, Jack C.

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Supreme Court guts key part of landmark Voting Rights Act

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The U.S. Supreme Court on Tuesday gutted a core part of the landmark 1965 Voting Rights Act and challenged Congress to come up with a replacement plan to protect blacks and other minorities in places where discrimination still persists rather than target former slaveholding...

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Affirmative Action vs Race-Neutral Admissions

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Affirmative Action vs Race-Neutral Admissions

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Affirmative Action vs. Race-Neutral Admissions: A Case Study | WSJ

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When the Supreme Court handed down its opinion in Reed v. Reed in November of 1971, the decision made headlines across the country. For the first time since the Fourteenth Amendment had gone into effect in 1868, the Court had struck down a state law on the ground that it discriminated against women in violation of the Equal Protection Clause.

The law in question-enacted in Idaho in 1864-required that when the father and mother of a deceased person both sought appointment as administrator of the estate, the man had to be preferred over the woman. When Richard Lynn Reed died intestate (without a will) at the age of sixteen, each of his divorced parents-Sally and Cecil-filed a petition seeking to be appointed administrator of their son's estate. The probate court, relying on the language in the 1864 statute, chose the father.

In a terse and unanimous opinion, the Idaho Supreme Court rejected Sally Reed's contention that the statute's preference for men over women was "arbitrary and capricious." The court ruled that the legislature might have reasonably concluded that, in general, "men are better qualified to act as [administrators] than are women." In addition, the mandatory preference for men served the legitimate purpose of "curtailing litigation over the appointment of administrators."

The U.S. Supreme Court's opinion was also brief and unanimous, but it came to the opposite conclusion. Chief Justice Warren E. Burger, writing for the Court, formulated the question as "whether a difference in the sex of competing applicants for letters of administration bears a rational relationship" to the state's objective of reducing expensive probate litigation. Burger noted that Idaho did not deny letters of administration to women altogether; in fact, a woman whose spouse died intestate was given preference over any male relatives of the decedent. In a passing glance at society as a whole, Burger observed that-probably as a result of women's greater longevity-many estates were administered by surviving widows.

Without much further discussion, the Court held that the Idaho statute violated the Equal Protection Clause. "To give a mandatory preference to members of either sex over the other, merely to accomplish the elimination of hearings on the merits," Burger wrote, "is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment."

Although Reed has been hailed as a landmark decision, it is almost as remarkable for what it did not do as for what it did do. Sally Reed's attorneys in the Supreme Court (including Ruth Bader Ginsburg, then a volunteer attorney for the American Civil Liberties Union [ACLU]) had focused on the need to subject gender classifications such as the one at issue to strict scrutiny under the Equal Protection Clause: their brief devoted forty-six pages to the strict scrutiny standard, as compared to only seven pages arguing the fallback position that the statute should be invalidated under a rational basis test. But the Court's opinion simply applied the rationality standard without mentioning the possibility of adopting anything more stringent.

The advantage of this silence, for women's rights advocates, was that the Court did not explicitly reject the idea of designating gender a "suspect classification," thus leaving the issue open for another day. And given the Court's prior tolerance of similar discriminatory statutes, Reed clearly signaled a shift in attitude: state legislatures no longer would be able to assume that women could be excluded simply on the ground of administrative convenience. The Court, it seemed, was catching up to the rest of society, where-as the ACLU's brief pointed out-women were entering the workforce in unprecedented numbers, and statutes such as Idaho's were beginning to look like quaint artifacts of an outdated era. (In fact, by the time Reed reached the Supreme Court, the discriminatory Idaho provision was about to be effectively repealed.)

But the Court's use of the reasonableness test created uncertainty about what might come next, and was seen by some as hypocritical. After all, one feminist commentator pointed out, was it really so unreasonable-in 1971-for the Idaho legislature to conclude that men, in general, had more business expertise than women? Clearly the Court was not applying the reasonableness test in the traditional deferential manner-the way it had applied it, for example, in Williamson v. Lee Optical, a much-quoted 1955 case. There the Court had stated that, to satisfy the demands of the Equal Protection Clause, "the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it."

Had the Supreme Court adopted strict scrutiny in Reed, it would have sent an unmistakable signal to the lower courts that any legislation that discriminated on the basis of gender-even legislation intended to protect women-was invalid. But because the reasonableness test was so malleable, challenges to discriminatory legislation would now have to be resolved on a case-by-case basis.

Believing that more fundamental change was necessary, some women's rights advocates pinned their hopes on the Equal Rights Amendment, then pending in Congress. While the Reed decision was heartening, it seemed that only through a constitutional amendment could gender equality be firmly secured.

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Supreme Court Decisions & Women's Rights: Breaking New Ground - Reed v. Reed | SCHS Classroom Resources

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When the Supreme Court handed down its opinion in Reed v. Reed in November of 1971, the decision made headlines across the country. For the first time since the Fourteenth Amendment had gone into effect in 1868, the Court had struck down a state law on the ground that it discriminated against women in violation of the Equal Protection Clause.

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The issue: Does the Constitution allow government to classify on the basis of race if the law is intended to benefit a previously discriminated against minority?

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Introduction
In his famous dissent in Plessy v Ferguson, Justice John Harlan wrote that the law was "color blind." Recently, Harlan's phrase has found new currency among critics of government affirmative action programs that began to spring up in the 60s and 70s.
May the government use racial classifications when it does so to benefit, not discriminate against, racial minorities that have historically been the victims of discrimination? The Supreme Court first considered that question in 1978, in the case of Bakke v. Regents, University of California. Bakke, a white applicant to the UC-Davis Medical School, claimed that he was denied admission even though his test scores and grades were markedly better than minority applicants who were admitted. The Court found that Bakke had been denied equal protection of the laws by UC-Davis's use of a "two-track" admission system, one track for whites and one for non-whites. Even though Bakke won, many people came to viewBakke as a victory for proponents of affirmative action. Justice Powell, providing the critical fifth vote for Bakke, said in his concurring opinion that increasing racial diversity in classrooms was a compelling state interest, and that a more narrowly tailored program--such as one that gave "pluses" to minority applicants rather than putting them into a seperate admission track--would not violate the Constitution. Recently, the Fifth Circuit has predicted, in a case involving a challenge to the affirmative action program at the University of Texas (Hopwood v. Texas), that the Court would not followBakke today. The Fifth Circuit found UT's use of race in its admission process to violate the Constitution.

Allan Bakke receives his medical degree from UC Davis.

Richmond v J. R. Croson considered affirmative action in the context of government "set-asides": programs that set aside a specified percentage of government contract dollars for minority business enterprises. Rejecting the argument that racial set-asides might be justified as a remedy for past societal discrimination, the Court held that such programs are only justified as a remedy for past discrimination by the government entity adopting the set-asides.Croson, and a subsequent case involving a federal set-aside program (Adarand Constructors v Pena (1995)) make clear that all racial classifications will be subject to the strict scrutiny test requiring demonstration of a compelling state interest and use of classifications narrowly tailored to further that interest.
In 2003, the Court decided two cases challenging affirmative action policies at the University of Michigan--one involving the law school (Grutter v Bollinger) and one involving the undergraduate college (Gratz v Bollinger). The result was a split for Michigan, with the Law School's more individualized consideration of race upheld on a 5 to 4 vote, and the undergraduate school's more blatant heavy weighting of race as a plus factor struck down, 6 to 3. Justice O'Connor's opinion for the Court inGrutter adopted much of Justice Powell's reasoning inBakke. O'Connor found the Law School's asserted interest in creating a diverse student body to be a compelling justification for its consideration of race, and found the school admission policy appropriately considered race along with many other characteristics or experiences that could contribute to diversity. O'Connor cautioned, however, that affirmative action programs should have some termination point, and she suggested that in another twenty-five years a similarly structured program would be unlikely to stand. Most recently, in two 2007 cases (Meredith v Jefferson County and Parents Involved v Seattle Schools), the Supreme Court struck down programs in Louisville and Seattle that used the race of students as a factor in assigning students to schools so as to maintain a targeted level of racial diversity in public schools. Chief Justice Roberts (joined by Scalia, Thomas, and Alito) would prohibit all attempts to "racially balance" public schools outside of the higher education context, concluding that no compelling interest exists for such efforts. Justice Kennedy, providing the fifth vote to strike down the plans, saw the problem as one of a lack of narrow tailoring. Kennedy suggested that attempts to achieve racial balance in public schools would be constitutional if they focused, for example, on placement of new schools in racially integrated neighborhoods--rather than relying on a "crude" racial classification of students.

Abigail Fisher

In 2013, the Court announced its decision in Fisher v University of Texas, involving a challenge to the university's use of race as part of a two-pronged effort (the first prong being a "race-blind" policy of automatically admitting students graduating in the top 10% of their Texas high school classes) to increase the number of non-white students. The Court, in a 7 to 1 decision authored by Justice Kennedy, found that the courts below gave too much deference to the university and failed to apply appropriately strict scrutiny. Adopting a tougher standard than eitherBakke or Grutter, the Court said, "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense, then the university may not consider race." Justice Ginsburg dissented, finding that Texas satisfied theGrutter/Bakke standard, while Justice Thomas, concurring, would have overruledGrutter and banned all consideration of race in the admissions process. The Court noted that it was not deciding to overruleGrutter because it had not been asked to do so, leaving open that possibility for a future case. TheFisher decision is certain to spawn more lawsuits. Following the Court's decision in Grutter upholding the use of race as a factor in admissions decisions at the University of Michigan, the voters of Michigan adopted a constitutional amendment banning the racial preferences in school admissions. That amendment was challenged in 2014 by groups that argued that the amendment violated the Equal Protection Clause by denying minorities the opportunity to restore racial preferences in the state legislature, rather than through the more difficult process of constitutional amendment (Schuette v Coalition to Defend Affirmative Action). The challengers cited a line of cases that suggested, at a minimum, that state constitutional amendments enshrining a private right to discriminate are constitutionally suspect. Voting 6-2, however, the Court ruled that the voters of Michigan are free to decide whether or not to extend racial preferences in admissions. This was not, the Court made clear, a case where a constitutional amendment placed obstacles in the path of minorities seeking equal treatment under the law or which encouraged private discrimination in any way.

In 2023, the Supreme Court, on a vote of 6 to 3 in the cases of Students for Fa ir Admissions v Har v ard and Students for Fair Admissions v University of North Carolina, held that affirmative action programs in colleges and universities violated the Equal Protection Clause and must be discontinued. Chief Justice Roberts, writing for the Court, said that admissions decisions must be made on an individualized basis and the color of an applicant's skin could play no role in the admissions process. (The Court did allow, however, that if an applicant's essay were to show that overcoming racial discrimination somehow revealed a strength of character, that could be considered in the process, just as any applicant's overcoming any other major life obstacle might be as well.) The Court's opinion seems to rule out colleges and universities setting any sort of diversity goals based on race and strongly suggested that any work-arounds adopted by colleges would be closely scrutinized to determine if they were designed specifically to ensure certain levels of minority representation on campus.

The Firefighters Case" (Ricci v DeStefano)(2009)

In a case that played a major role in the Sotomayor confirmation hearings, the Supreme Court reversed a ruling of Justice Sotomayor's former court, the Second Circuit, and found that New Haven's decision to throw out a promotion exam that would have resulted in 17 whites, 2 Hispanics, and no blacks promoted within its fire department violated Title VII. The Court did not reach the white firefighters' Equal Protection Clause argument, but the four dissenters (Ginsburg, Stevens, Breyer, and Souter) did, finding no violation of the Fourteenth Amendment in New Haven's action. Justice Kennedy, writing for the Court, drew analogies from equal protection precedents in reaching his result. The failure of New Haven to show a "strong basis in evidence" that its decision to throw out the test was necessary to counter past racial discrimination, Kennedy says, supports the conclusion that the city violated Title VII.

3. Which of the various state interests alleged by California in the 4. Is Justice Powell's opinion in 5. Should "benign" racial classifications be subject to strict scrutiny or, as the four dissenters in 6. Does the 8. Is your view of the correctness of the Court's result in 9. Does Justice Kennedy's concurrence in Parents Involved v Seattle leave school districts with adequate tools to maintain integrated schools, or are school districts in many metropolitan areas bound to slide back towards segregation--albeit the result of housing patterns, rather than de jure segregation?

Lewis Powell, author of the key opinion in the Bakke case.

Cases
Affirmative Action in the Schools
Bakke v. Regents, Univ. of California (1978)
Grutter v Bollinger (2003)
Parents Involved v Seattle School District (2007)
Fisher v University of Texas (2013)
Students for Fair Admissions v Harvard (2023)

Minority "Set Aside" Programs
Richmond v. J. R. Croson (1989)
Adarand Constructors v Pena (1995)

Link
Government Interests Asserted in Bakke

Questions
1. How should we evaluate discrimination between racial minorities? For example, what if an affirmative action program for school admissions were to extend preferences to blacks and Hispanics, but not Native Americans?
2. How should a court evaluate a claim of discrimination by someone complaining of exclusion from a protected class? For example, if a school admission program classified someone with two black grandparents as "black," but someone with one black grandparent as "white," could the student classified as white support a claim of unconstitutional discrimination? What standard of review should apply to such state line-drawing?

Bakke case seem the most compelling to you: (1) remedying past societal discrimination, (2) increasing the number of minorities in the legal profession, (3) increasing legal services for underserved populations, or (4) increasing diversity in the classroom? Do you agree with Justice Powell's analysis with respect to whether UC-Davis's classification was a narrowly tailored means of serving the vaious interests alleged?
Bakke "the law"? Why or why not?
Bakke argued, intermediate scrutiny?
Bakke court hold that more qualified applicants have a right to admission ahead of less qualified applicants? 7. Is it the job of a lower court to predict how the Supreme Court might decide a case today, or should it apply existing Supreme Court caselaw even when it thinks the current Court would reject it?

Supporters of Seattle's efforts to racially balance its schools

Croson at all affected by the fact that five of the eight city council members voting on the Richmond set-aside program were black--including five of the six "yes" votes?

10. Does the opinion of Chief Justice Roberts in Parents Involved v Seattle suggest that four members of the Court are ready to overrule Grutter?
11. Both the majority and the dissent in Parents Involved v Seattle claim the mantle of Brown v Board. Which side has the better argument?
12. In Grutter, Justice O'Connor, while upholding the affirmative action program in question, wrote, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Can we assume that the Grutter holding has an expiration date of 2028 and no racial preferences will be deemed constitutional after that date?

Jennifer Gratz (L) and Barbara Grutter (R), plaintiffs in affirmative action suits against the Univ. of Michigan. (CNN)

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This page includes materials relating to the continuing controversy over the use of racial classifications in government affirmative action programs.

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AFFIRMATIVE Action [AP Gov Review, Unit 3 Topic 13 (3.13)]

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The legal battle over affirmative action in higher education has been ongoing for decades - and this week, the volleys began anew.

On Monday, the Supreme Court heard arguments in a pair of cases that seek to put an end to universities' ability to consider race when evaluating applications for admission.

It's far from the first time affirmative action has been challenged in court. Since its inception amid the civil rights movement of the 1960s, major cases have come before the Supreme Court several times.

The court has repeatedly ruled in favor of universities' ability to consider the race of applicants, so long as it is one of many factors in an individualized admissions decision.

Now, these precedents could be in question as a newly conservative majority considers the cases this term.

Regents of the University of California v. Bakke (1978): Universities can consider race as a factor

In Regents of the University of California v. Bakke, which established the constitutionality of affirmative action programs, the Supreme Court considered a quota system in place at the University of California.

At the time, UC Davis reserved 16 out of every 100 spots for qualified minority students. Allan Bakke, a white man, was denied admission by the university's medical school despite having higher test scores than minority students who were admitted that year. He sued.

In Bakke, the court decided that the quota system was unconstitutional, along with the use of affirmative action policies to remedy the effects of racial discrimination.

But in a narrow majority, the court also ruled that schools did have a "compelling interest" in the educational benefits of having a diverse student body, which allowed them to consider race in admissions, so long as it was one of many factors considered. In the words of Justice Lewis Powell, "race or ethnic background may be deemed a 'plus' in a particular applicant's file."

Gratz v. Bollinger and Grutter v. Bollinger (2003): The modern precedent

This pair of decisions - especially Grutter v. Bollinger - laid out the blueprint for race-conscious admissions that has been widely used by universities since. Both suits were brought by white people who were denied admission to the University of Michigan.

In Gratz v. Bollinger, Jennifer Gratz and Patrick Hamacher sued over a points-based admissions system used by the university. At the time, the University of Michigan granted admission to any applicant who scored more than 100 points on a 150-point scale. Members of underrepresented minorities were each granted 20 points, and as a result, "virtually every" qualified applicant from these minority groups was admitted. The court found that the points system was unconstitutional because race had not been considered on an individualized basis.

But in Gratz's sister case, Grutter, brought by Barbara Grutter over her denial from the university's law school, the court upheld the basic concept behind affirmative action. Admissions officers could consider the race of applicants so long as they did so in a "narrowly tailored" and individualized way, the 5-4 majority found.

Notably, in Grutter, the court also said that race-conscious programs should not exist permanently. Writing for the majority, conservative Justice Sandra Day O'Connor expressed the expectation "that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

Fisher v. University of Texas (2013 and 2016): A failed attempt to overturn Bakke and Grutter

After being denied admission to the University of Texas in 2008, a white woman named Abigail Fisher sued the university over its race-conscious admissions policy in what was widely seen as an attempt to overturn the court's previous stances on affirmative action.

At the time of her lawsuit, the University of Texas automatically admitted Texas applicants who had completed high school in the top 10% of their graduating class, regardless of their race. For the remaining spots in each incoming class - about a quarter of admissions - the university considered a variety of factors, including race. Fisher challenged only this discretionary part of Texas' admission policy.

When it first heard the case in 2013, the Supreme Court sent it back to a lower court. Then, in 2016, the justices ruled in favor of the university, finding that its admissions program was, in fact, constitutional.

Although Justice Anthony Kennedy ultimately voted to uphold the Texas admissions policy, he also wrote in the 2013 decision that universities must demonstrate, "before turning to racial classifications, that available, workable race-neutral alternatives do not suffice."

Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina (likely 2023)

The two cases heard Monday are separate but similar. Together, they seek to overturn Grutter and share a central question: Does any consideration of race in the college admissions process constitute a violation of the Equal Protection Clause?

The cases are similar in that the plaintiffs say the schools discriminated against white and Asian American applicants during the admissions process by giving extra preference to Black, Hispanic and Native American applicants. The Harvard College case goes further, claiming discrimination against Asian American applicants, which Harvard denies.

Both cases were brought by a conservative group called Students for Fair Admissions, whose head, Edward Blum, also bankrolled the Fisher case.

Both Harvard and the University of North Carolina say they consider race as one of many factors, alongside considerations such as extracurricular activities, socioeconomic background and military veteran status, and do so within the constitutional guidelines set by Grutter. The schools also say that their attempts to use race-neutral ways of diversifying their student bodies have been unsuccessful.

The 2016 Fisher ruling came as a surprise to many. Now, with six of the Supreme Court's nine justices appointed by Republicans, the court is even more conservative than it was then. A decision to completely overturn Grutter could have dramatic effects in the college admissions world: Over 40% of U.S. universities consider race at some point during the admissions process, according to a brief filed by Harvard.

The court's newest justice, Ketanji Brown Jackson, has recused herself from the Harvard case but remains on the UNC case. The rulings are likely to come next summer.

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How the Supreme Court has ruled in the past about affirmative action

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The legal battle over affirmative action in higher education has been ongoing for decades - and this week, the volleys began anew. On Monday, the Supreme Court heard arguments in a pair of cases that seek to put an end to universities' ability to consider race when evaluating applications for admission.

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Regents of the University of California v. Bakke was a case brought to the Supreme Court over the use of Affirmative Action in the college admission process. The University of California at Davis Medical School created a minimum minority student quote for the admissions department to fill each year. Bakke, a two-time UC-Davis Med School rejected applicant, sued the school for violation of the equal protection clause of the 14th Amendment and title VI of the Civil Rights Acts. Ultimately, the Supreme Court justices ruled in support of the goals of Affirmative Action, but also stated that Bakke was, in fact, denied equal protection. This decision, because it was so muddled, did not set long-tern precedents or clarifications concerning Affirmative Action.

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Regents of the University of California v. Bakke | BRI's Homework Help Series

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Regents of the University of California v. Bakke was a case brought to the Supreme Court over the use of Affirmative Action in the college admission process. The University of California at Davis Medical School created a minimum minority student quote for the admissions department to fill each year.

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Grutter v. Bollinger was a case brought to the Supreme Court over the use of Affirmative Action in the college admissions process. The University of Michigan Law School denied acceptance to Barbara Grutter, despite her impressive resume. Grutter, a white woman, believed that her rejection was based on her race. The Supreme Court Justices ultimately ruled that the University of Michigan Law School's admissions process was constitutional. However, there was doubt among the most conservative Supreme Court justices like Scalia and Rehnquist that affirmative action policy was a constitutional practice for university admission departments to take part in. Affirmative Action is still a highly debated topic today.

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Grutter v. Bollinger | BRI's Homework Help Series

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Grutter v. Bollinger was a case brought to the Supreme Court over the use of Affirmative Action in the college admissions process. The University of Michigan Law School denied acceptance to Barbara Grutter, despite her impressive resume. Grutter, a white woman, believed that her rejection was based on her race.

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Interpretation: The Equal Protection Clause | Constitution Center

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Interpretations of The Equal Protection Clause by constitutional scholars

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Interpretation: The Fourteenth Amendment Due Process Clause | Constitution Center

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Interpretations of The Fourteenth Amendment Due Process Clause by constitutional scholars