Robert A. Caplen, Constitutional Law: Forecasting the Sunset of Racial Preferences in Higher Education while Broadening their Horizons

56 Fla. L. Rev. 853 (2004) | | | |

INTRODUCTION :: Respondents implemented admissions policies designed to select an academically qualified and diverse student body with substantial promise for success within the legal profession and filed a lawsuit alleging discriminated against her on the basis of race in violation of the Fourteenth Amendment held that Respondents’ acceptance of a “critical mass” of minority students in order to create a racially diverse student body violated the Equal Protection Clause of the Fourteenth Amendment and enjoined Respondents from using race as a factor in their admissions policies. Respondents appealed, and the appellate court reversed, holding that diversity constituted a compelling state interest and that Respondents’ use of race in admissions was lawful and, affirming the appellate court, HELD, that narrowly tailored uses of race in a public university’s admissions policies in order to obtain the educational benefits that flow from a diverse student body are constitutionally permissible.

The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Courts analyze equal protection claims that allege racial discrimination by assessing whether racial classifications are narrowly tailored to further a compelling government interest. While Courts apply strict scrutiny review in order to expose potentially illegitimate uses of race, not every racial classification is invalidated by the Fourteenth Amendment. The Court explored the role of rights safeguarded by both the Fourteenth and First Amendments within the realm of post-secondary education.


In Sweezy, the Court considered whether government action to restrict academic freedom within American universities violated the First Amendment. Petitioner, a guest lecturer suspected of espousing anti-American ideology in a university humanities course, was held in contempt of court for failure to disclose the content of his classroom lectures during an investigation into subversive activities. Accordingly, the Court discussed the extent to which the alleged encroachment upon individual liberties affected academic discovery and exchange.

The Court characterized the importance of freedom to pursue academic inquiry within American universities as “self-evident” and critical for the advancement of the nation. In this context, the Court held that the government could not inhibit the exchange of intellectual ideas and knowledge among students and instructors within the university system. Moreover, the Court emphasized that First Amendment guarantees could not be abridged merely because a member of academia disseminated or harbored viewpoints that diverged from mainstream beliefs. Thus, in Sweezy, the Court exhibited an unwillingness to permit government interference into specific facets of the intellectual life fostered by American colleges and universities.

In Keyishian v. Board of Regents, the Court applied the principles of academic freedom as articulated in Sweezy. In the context of the First Amendment, the Court examined the validity of state legislation allowing for the disqualification and removal of public university instructors who failed to sign loyalty oaths disavowing subversive ideology. Although the Court recognized the state’s interest in protecting its educational system from subversive elements.

Justifying its decision, the Court characterized the American classroom as a “‘marketplace of ideas’” and rejected the notion that states could enact laws restricting student exposure to various points of view. Safeguarding academic freedom, the Court emphasized, provided both transcendent value and practical application in training future leaders of the nation. The Court criticized any restrictions placed upon an instructor’s ability to communicate wide arrays of ideas to students as antithetical to the Constitution.

Utilizing the Sweezy and Keyishian definitions of academic freedom, a sharply divided Court, in Regents of the University of California v. Bakke, evaluated whether a university’s racial set-aside admissions policy was constitutionally permissible. Petitioner attempted to justify, inter alia, its use of racial quotas on the basis of educational benefits that flowed from a diverse student body. Respondent challenged the policy as an impermissible use of race prohibited by the Fourteenth Amendment.

In his opinion announcing the judgment of the Court, Justice Powell noted that the Sweezy concurrence recognized that a university’s academic freedom extended to its selection of a student body. A diverse student body, Justice Powell reasoned, promoted an atmosphere of academic inquiry and freedom protected by the First Amendment. Justice Powell acknowledged, however, that other elements aside from ethnicity and race produced a heterogeneous student body. Recognizing judicial reluctance to interfere with universities, Justice Powell attributed a presumption of good faith to universities. The Court held that, while a university may not use racial quotas, it may, under properly devised standards, consider race and ethnicity in its admissions programs for the purpose of promoting student body diversity.

Like the Court in Bakke, the instant Court analyzed Respondents’ race-based admissions policies to determine whether admitting a “critical mass” of certain minorities to create a heterogeneous student body survived constitutional challenge. The instant Court acknowledged Bakke’s effect upon university admissions policies by referring to amici curiae that noted how several universities modeled admissions policies on Justice Powell’s opinion. The instant Court maintained that universities represent the training ground for the nation’s leaders. The instant Court stressed that the goals of leadership and good citizenship could only be achieved by providing members of all racial and ethnic groups with access to higher education. Thus, the instant Court held that Respondents’ use of race in their admission policies in order to achieve a diverse student body did not violate the Fourteenth Amendment.

Justifying its ruling, the instant Court noted that the First Amendment accords universities a broad range of academic freedoms as hallmarks of a post-secondary education. The instant Court considered a university’s selection of its student body to be one component of academic freedom. Additionally, the instant Court emphasized that the judiciary should defer to the expertise of educators concerning academic judgments made within their purview. Therefore, the instant Court accepted Respondents’ assurance that they would phase out race-conscious admissions policies when Respondents no longer deem them necessary.

Justice Thomas, in a separate opinion, emphasized that the majority mischaracterized the compelling government interest offered by the Respondents in defense of their race-conscious admissions policies. Justice Thomas questioned the majority’s reliance upon social science evidence contained in numerous amicus curiae briefs as justification for deferring to Respondents’ policy judgment. Furthermore, Justice Thomas characterized the majority’s expanded interpretation of academic freedom grounded in the First Amendment as unprecedented. Justice Thomas criticized the majority’s unexplained adoption of Justice Powell’s opinion in Bakke as binding. Furthermore, Justice Thomas objected to the majority’s characterization of Respondents’ use of race and ethnicity in its admissions policies as educational autonomy.

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