56 Fla. L. Rev. 841 (2004) | 
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INTRODUCTION :: Respondents adopted a law school admissions policy that considered, among other factors, applicants’ race and ethnicity. The admissions policy was designed to achieve the educational benefits of a diverse student body. As part of this policy, admissions officers often considered daily reports that tracked the number of accepted minorities. The admissions policy consistently resulted in a correlation between the percentage of minority applicants and the percentage of minority acceptances. application for admission. Petitioner challenged the admissions policy, alleging that it violated her Fourteenth Amendment right to equal protection. The District Court held that Respondents’ policy was unconstitutional. The Supreme Court granted certiorari and, in upholding the decision of the court of appeals, HELD that although the admissions policy was facially discriminatory, it satisfied strict scrutiny because good faith is presumed.
The Fourteenth Amendment provides in relevant part that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Courts have interpreted this to mean that a racial classification that infringes on an individual’s rights is subject to strict scrutiny. Strict scrutiny requires that the racial classification be justified by a compelling state interest achieved by narrowly tailored means. Where the classification is facially neutral, however, good faith will be presumed absent a showing of discriminatory intent.
Writing for the plurality in Regents of the University of California v. Bakke, Justice Powell found that the University of California’s admissions policy was facially discriminatory, and thus applied strict scrutiny challenged petitioner’s medical school admissions policy, which reserved a specified number of seats for minority applicants. Petitioner offered several justifications for its use of race in the admissions process, including the goal of student body diversity.
The plurality first established that this quota was a facially discriminatory racial classification. Under this analysis, the plurality recognized petitioner’s asserted interest in student body diversity as part of its academic freedom under the First Amendment. The plurality insisted, however, that a university could not exercise this academic freedom at the expense of individual rights. The plurality argued that a quota was not the only or even the most effective means of meeting the goal of student body diversity. Reasoning that individual review of an applicant would provide a race-neutral alternative to a quota, the plurality concluded that the admissions policy was not narrowly tailored. The plurality noted that where such individual review was maintained, courts should presume good faith on the part of the university. In Bakke, however, the Court did not presume good faith and concluded that the university’s admissions policy was unconstitutional.
Despite the uncertainty caused by the split Court in Bakke, Adarand Constructors, Inc. v. Pena again emphasized that all racial classifications must be subject to strict scrutiny. In Adarand, a government contract provided additional compensation to a prime contractor who hired an economically and socially disadvantaged subcontractor. Federal statutory law further provided that certain racial and ethnic minorities should be presumed to be economically and socially disadvantaged.
The Court first established that the policy of awarding additional compensation based on the disadvantage presumption was racially discriminatory on its face. The Court emphasized that good motives were not enough to justify even a benign racial classification. The Court based this on the highly suspect nature of all racial classifications. The Court concluded that strict scrutiny should apply even in this case and, as such, remanded the case so that the lower courts could consider whether the interests served by the use of the subcontractor compensation clauses were compelling and whether the means were narrowly tailored to further these interests.
Applying intermediate scrutiny, the Court in United States v. Virginia echoed Bakke and Adarand and held that deference was inappropriate under any heightened standard of review. In Virginia, the United States challenged the Commonwealth’s policy of not admitting women to its military institute. As a justification for this policy, the Commonwealth asserted an interest in diversity in education through single-sex institutions.
The Court first found that the Commonwealth’s total exclusion of women from the military institute was a gender-based classification. Therefore, under intermediate scrutiny, the Court required the Commonwealth to show an exceedingly persuasive justification for its policy. The Court in Virginia implicitly accepted diversity as a legitimate goal in higher education. The Court found, however, that the Commonwealth’s policy had not actually been motivated by that goal. Reasoning that mere recitation of a benign purpose, such as diversity, does not satisfy intermediate scrutiny, the Court concluded that deferential review was inappropriate and therefore the policy was invalid.
Although the instant Court purported to apply strict scrutiny, it employed a high level of deference. In determining whether the university had a compelling state interest, the instant Court gave deference to Respondents’ stated goal of student body diversity. The instant Court also presumed that Respondents were acting in good faith. Despite claims by the dissent that Respondents’ actual purpose was racial balancing, the instant Court accepted Respondents’ interest in diversity at face value. The instant Court thus found that Respondents’ interest was compelling under strict scrutiny.