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The Equal Protection Clause Forbids Racial Preferences in State University Admissions

The BriefGet Up To Speed

The Fourteenth Amendment to the U.S. Constitution provides that: "No State shall '€¦ deny to any person within its jurisdiction the equal protection of the laws.'€ Yet many state universities give substantial preferences to certain races in their admissions decisions. In Regents of the University of California v. Bakke (1978), the Supreme Court approved such preferences, but the case was close, and controversial, and the question will be back before the Supreme Court this term. One side may argue that these preferences level the playing field, remedy prior discrimination, and enhance diversity within the classroom, thus redeeming the true promise of equal protection. But the other may say that these preferences '€“ in favor of some races, at the expense of others '€“ are racial discrimination pure and simple, the precise evil that the Equal Protection Clause was intended to forbid.


To oppose equal treatment is to support preferential treatment for some and discrimination for others.

Sunday, June 3, 2007
Ward Connerly

Put simply, it does not violate equal protection to require equal treatment. The only thing this constitutional amendment discriminates against is discrimination.

Sunday, October 13, 2013
Bill Schuette

The mismatch literature is showing Grutter to be a well-meaning but ultimately misguided deviation from what otherwise had become accepted principle — that race discrimination should not be tolerated. Perhaps in the future, the Court will not be so flexible with its principles

Tuesday, March 1, 2016
Gail Heriot

Racial preferences are a form of discrimination, and they stigmatize those whose accomplishments are not due to such preferences.

Thursday, February 27, 2014
Jennifer Gratz

Like Justice Ginsburg, I do not believe that affirmative action programs should be subject to the same constitutional scrutiny as laws that unjustly discriminate against a disadvantaged class, and with this assumption, Texas's modest program easily passes constitutional muster.

Tuesday, June 25, 2013
Scott Lemieux

The administration rightly makes the case before the Supreme Court that public universities should continue to consider race as a factor in admissions.

Thursday, August 16, 2012
Editorial Board

This article examines and rejects the misleading claim that the individual or personal nature of equal protection is inconsistent with affirmative action programs that use race or gender as a classifying tool.

Tuesday, March 1, 2016
Robert Farrell

A number of Justices, it is fair to say, have been willfully blind to the persistence of racial discrimination and disadvantage. With clearer sight, they might even see that not only does affirmative action promote diversity to the benefit of all students, but also that whatever advantage it provides minorities at best cancels the disadvantages that its beneficiaries may suffer because of their race.

Friday, April 25, 2014
Richard Lempert

Background information about affirmative action as well as a few notable court cases.

Saturday, May 9, 2015
CNN Library

Lyle Denniston looks at the Supreme Court’s recent ruling on affirmative action, other historical decisions on it, and the next case about the subject heading toward the Justices.

Thursday, April 24, 2014
Lyle Denniston

The Supreme Court, in an anticlimax, sidestepped a sweeping ruling on affirmative action Monday, directing lower courts to re-examine whether a race-conscious admissions program at the University of Texas at Austin should survive constitutional scrutiny.

Tuesday, June 25, 2013
Jess Bravin

The Supreme Court heard arguments on whether Michigan voters can pass a law that prohibits racial preference in college admissions. Gwen Ifill gets background from Marcia Coyle of the National Law Journal, plus views from Lee Bollinger of Columbia University and Joshua Thompson, an attorney with the Pacific Legal Foundation.

Tuesday, October 15, 2013
PBS News Hour

The reconstruction amendments (13th, 14th, and 15th) were ratified to extend the equal rights of citizenship to freed slaves and to protect minorities against discrimination. But what of discrimination in favor of minorities? Robertson explains the recent history of the 14th Amendment’s Equal Protection Clause as it is applied to affirmative action.

Wednesday, December 31, 1969
Lindsay Robertson

The current state of the law suggests that an affirmative action program will survive strict scrutiny if it is tied to the original purpose of such programs: remedying proven, not speculative, past or present discrimination. Conversely, racial diversity, while a laudable goal, will have to be achieved by means other affirmative action.

Sunday, March 1, 1998
L. Anita Richardson

In states that have banned affirmative action in college admissions in the past, prominent public universities have tended to enroll fewer black and Hispanic freshmen.

Tuesday, June 30, 2015
The New York Times
Equal Protection Clause

Overview of the Equal Protection Clause and 14th Amendment.

Wednesday, December 31, 1969
Cornell University Law School
Notable Court Cases

Overview of major court decisions on affirmative action.

Saturday, June 1, 2013
National Conference of State Legislatures

Overview of Schuette v. Bamn, a 2014 United States Supreme Court case that questioned whether a state violates the Equal Protection Clause of the Fourteenth Amendment by enshrining a ban on race- and sex-based discrimination on public university admissions in its state constitution.

Wednesday, December 31, 1969
Cornell University Law School

Overview of <em>Fisher v. University of Texas at Austin</em>, a 2013 United States Supreme Court case concerning the affirmative action admissions policy of the University of Texas at Austin. Read the majority opinion <a href="" target="_blank">here</a>.

Wednesday, December 31, 1969
Cornell University Law School

Overview of <em>Grutter v. Bollinger</em>, a 2003 landmark case in which the United States Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School.

Wednesday, December 31, 1969
Cornell University Law School

Overview of the landmark decision by the Supreme Court of the United States, <em>Regents of the University of California v. Bakke</em>, that ruled a university's use of racial "quotas" in its admissions process was unconstitutional, but a school's use of "affirmative action" to accept more minority applicants was constitutional in some circumstances. Read the majority opinion <a href=" target="_blank">here</a>.

Wednesday, December 31, 1969
Cornell University Law School

A clear majority of Americans, 67 percent, are opposed to considering race and ethnicity in college admissions, instead saying that students should be admitted solely based on merit, according to a recent Gallup poll.

Wednesday, July 24, 2013
Allie Bidwell

Americans say by roughly two-to-one (63% to 30%) that affirmative action programs designed to increase the number of black and minority students on college campuses are a “good thing.”

Friday, August 22, 2014
Bruce Drake

A majority of Americans say they favor affirmative action programs. However, support is a bit higher for programs aimed at helping women (67%) than for those focused on helping racial minorities (58%).

Wednesday, August 26, 2015
Rebecca Riffkin