Affirmative Action Supreme Court Cases

Affirmative action is the practice of giving preferential treatment to members of historically disadvantaged groups. This sometimes controversial process has garnered numerous legal challenges and court cases, with the U.S. Supreme Court weighing in on several occasions.

Use the links below to jump to summaries of key affirmative action cases:

• University of California Regents v. Bakke (1978)
• Fullilove v. Klutznick (1980)
• Mississippi University for Women v. Hogan (1982)
• Wygant v. Jackson Board of Education (1986)
• United States v. Paradise (1987)
• City of Richmond v. J.A. Croson Co. (1989)
• Metro Broadcasting, Inc. v. Federal Communications Commission (1990)
• Adarand Constructors, Inc. v. Pena (1995)
• Grutter v. Bollinger (2003)
• Fisher v. University of Texas at Austin (2014)
• Students for Fair Admissions v. Harvard University (2020)

The concept of affirmative action dates back to Title VI of the Civil Rights Act of 1964, which prohibited discrimination based on race, color, religion, sex, or national origin. President Lyndon B. Johnson, who signed the act into law, saw affirmative action as a way to address the historical injustices faced by African Americans and other marginalized groups.

In the years that followed, affirmative action became increasingly controversial. Critics argued that giving preferential treatment based on race or ethnicity was unfair. Supporters countered that affirmative action was necessary to redress past discrimination and segregation and to promote diversity in the workplace and higher education.

An Overview of Key Affirmative Action Cases

The following article provides a brief overview of key affirmative action cases in the United States. These Supreme Court cases shaped and will continue to shape affirmative action practices in America.

University of California Regents v. Bakke

The U.S. Supreme Court first addressed affirmative action in the 1978 landmark case of Regents of the University of California v. Bakke. Allan Bakke, a white applicant to the University of California Davis Medical School, claimed that he had been unfairly denied enrollment in favor of less qualified minority candidates.

The U.S. Supreme Court struck down the school's use of racial quotas but upheld the consideration of race in college admissions decisions to achieve a diverse student body. The court held that public universities could use race-conscious admissions policies without violating the Constitution.

However, the opinion also affirmed the California Supreme Court's decision to order Bakke's admission to the school.

The divisiveness of this case is evident from the six separate opinions it spawned. Justices Brennan, White, Marshall, and Blackmun, who concurred in part and dissented in part, stated that the school's special admissions program was not unconstitutional.

Fullilove v. Klutznick

Two years later, the U.S. Supreme Court again addressed affirmative action in Fullilove v. Klutznick. This case involved a challenge to a provision of the Public Works Employment Act of 1977. The law required that 10% of federal funding for certain public works projects be set aside for businesses owned by "minority group members."

The plaintiffs argued that the provision violated the Constitution's guarantee of equal protection under the law, as well as the Fifth Amendment's due process clause.

In a 5-4 decision, the U.S. Supreme Court upheld the constitutionality of the provision. The majority opinion, authored by Justice Burger, held that the government had a compelling interest in remedying past discrimination against minority groups — and that the provision was a permissible way to pursue that interest.

Mississippi University for Women v. Hogan

Decided in 1982, Mississippi University for Women v. Hogan questioned whether a publicly funded women's college could exclude men from its nursing school admissions. The Supreme Court held that excluding men from undergraduate admissions violated the 14th Amendment's equal protection clause.

The school argued that its goal was to provide a "unique educational experience" for women and that excluding men was necessary to remedy past discrimination against women.

Justice Sandra Day O'Connor, the first female Supreme Court Justice, authored the majority opinion. The majority reasoned that excluding men from the nursing program at Mississippi University for Women was not "substantially related" to the achievement of its goals.

The Supreme Court rejected the argument that the policy was necessary to remedy past discrimination against women. Instead, the court found the policy actually perpetuated the stereotype that nursing was a "woman's job."

This case is heavily cited in cases involving affirmative action policies. It established that any use of race or sex as a criterion for admission or hiring must be narrowly tailored and must serve a compelling governmental interest.

Wygant v. Jackson Board of Education

Affirmative action was addressed again in the landmark case, Wygant v. Jackson Board of Education, 476 U.S. 267 (1986). This case involved a challenge to a policy of the Jackson Board of Education that required layoffs of teachers to be made based on seniority, except where doing so would result in a disproportionate impact on minority teachers. The U.S. Supreme Court held that the policy violated the 14th Amendment's equal protection clause.

In the majority opinion, Justice Brennan wrote that the policy was unconstitutional because it employed a racial classification that did not serve a compelling governmental interest. The Supreme Court rejected the argument that the policy was necessary to remedy past discrimination.

This case established that racial classifications must be closely scrutinized to ensure that they are necessary to remedy past discrimination and are narrowly tailored to achieve that goal.

United States v. Paradise

In 1987, United States v. Paradise challenged a court-ordered affirmative action plan for the hiring and promotion of African American police officers in the city of Birmingham, Alabama. The District Court found that for almost four decades, the Alabama Department of Public Safety had systematically excluded African Americans from employment as state troopers in violation of the Fourteenth Amendment. As a result, the court issued an order imposing a hiring quota.

The Supreme Court held that the plan was constitutional because it was narrowly tailored to remedy the effects of past discrimination against African American police officers. In the majority opinion, Justice Brennan wrote that the plan was a permissible form of affirmative action because it was temporary and limited in scope.

City of Richmond v. J.A. Croson Co.

The U.S. Supreme Court addressed affirmative action again in the 1989 case of City of Richmond v. J.A. Croson Co. This case involved a challenge to a city ordinance that required contractors bidding on city construction projects to subcontract at least 30% of the work to minority-owned businesses. The city adopted this plan based on evidence that African Americans were underrepresented among "prime" construction contract awardees and local construction associations.

The Supreme Court held that the ordinance was unconstitutional because it employed a racial classification that did not serve a compelling governmental interest. There was no direct evidence that the city had ever discriminated on the basis of race. In the majority opinion, Justice O'Connor wrote that the ordinance was unconstitutional because it was not narrowly tailored to remedy past discrimination against minority-owned businesses.

Metro Broadcasting, Inc. v. Federal Communications Commission

Affirmative action was addressed again in Metro Broadcasting, Inc. v. Federal Communications Commission (FCC). The challenged FCC policy gave preferential treatment to minority-owned broadcast companies in the awarding of radio and television licenses. The U.S. Supreme Court held that the policy was constitutional because it was narrowly tailored to serve the compelling governmental interest of promoting diversity in the broadcast industry.

In the majority opinion, Justice Brennan wrote that the FCC policy was constitutional because it was narrowly tailored to remedy past discrimination against minority-owned broadcast companies. The U.S. Supreme Court noted that there was a long history of discrimination against minority-owned broadcast companies, which resulted in a severe underrepresentation of minority voices in the broadcast industry.

Adarand Constructors, Inc. v. Pena

Adarand Constructors, Inc. v. Pena was a significant 1995 decision involving a challenge to a federal program that gave contractors a financial incentive to hire minority-owned subcontractors. 

The U.S. Supreme Court held that the program was subject to strict scrutiny and remanded the case to the lower court to determine whether the program was narrowly tailored to serve a compelling governmental interest.

In the majority opinion, Justice O'Connor wrote that all racial classifications by the government must be subject to strict scrutiny, which requires that the government show:

• A compelling interest in the classification, and
• That the classification is narrowly tailored to achieve that interest.

The U.S. Supreme Court noted that the programs that employ race-based criteria must be evaluated carefully to ensure that they do not discriminate against non-minority individuals, that are necessary to remedy past discrimination.

Grutter v. Bollinger

The U.S. Supreme Court addressed affirmative action again in the case of Grutter v. Bollinger and its twin case, Gratz v. Bollinger. In this case, the U.S. Supreme Court upheld the use of race as a factor in admissions decisions at the University of Michigan Law School, again on the grounds of promoting diversity. However, the U.S. Supreme Court also made clear that affirmative action programs must be narrowly tailored and cannot use quotas or set aside a certain number of seats.

Fisher v. University of Texas at Austin

In 2013, in the case of Fisher v. University of Texas at Austin, the U.S. Supreme Court once again addressed the issue of affirmative action in higher education. Abigail Fisher, a white applicant to the University of Texas, challenged the school's use of race as a factor in admissions decisions.

The U.S. Supreme Court held that the school's program was unconstitutional but also emphasized that affirmative action programs must be subject to strict scrutiny and must be continually evaluated for their effectiveness.

Students for Fair Admissions v. Harvard University

Students for Fair Admissions v. Harvard University is a highly publicized and controversial lawsuit that alleges Harvard University discriminates against Asian-American applicants in its school admissions process. The lawsuit was filed in 2014 by Students for Fair Admissions (SFFA), a nonprofit membership organization that opposes affirmative action policies in undergraduate admissions.

SFFA alleges that Harvard intentionally discriminates against Asian-American applicants by holding them to a higher standard than other minority student applicants. Harvard denied the allegations. Harvard argued that it does not discriminate against any particular racial or ethnic group and that it seeks to create a diverse student body.

The Harvard case went to trial in October 2018, and in September 2019, a federal judge ruled in Harvard's favor, finding that the university's admissions process is constitutional and does not discriminate against Asian-American applicants. SFFA appealed the decision in November 2020, and the First Circuit Court of Appeals upheld the lower court's ruling in favor of Harvard. SFFA has since appealed to the U.S. Supreme Court, which is currently reviewing the case.

The issue of race-conscious admissions is similarly drawing attention at the University of North Carolina (UNC). SFFA also accused UNC of using racial discrimination in their admissions processes, arguing that affirmative action policies unfairly advantage African American and Hispanic applicants over Asian-American applicants. The UNC case remains ongoing.

The Future of Affirmative Action

Affirmative action remains a controversial and highly debated topic in the United States. While the Supreme Court has upheld the constitutionality of some affirmative action programs, it has also placed significant limits on their use.

As the country continues to grapple with issues of race, inequality, and access to opportunity, the future of how the court rules on affirmative action remains uncertain.