Back to Bakke: Defining the Strict Scrutiny Test for Affirmative Action Policies Aimed at Achieving Diversity in the Classroom


Last summer, the United State Supreme Court, in Grutter v. Bollinger and Gratz v. Bollinger, reviewed constitutional challenges to two affirmative action admission policies. These cases marked the first time in 25 years that the Court reviewed this particular issue. A close reading of these cases confirms that the Court will evaluate Equal Protection challenges to affirmative action programs aimed at improving diversity in the classroom differently than challenges to programs aimed at achieving racial equality in the workplace. This article interprets the Court’s analysis of affirmative action admission policies and offers a definition for a new strict scrutiny test and the issues surrounding their decision.

Specifically, this article provides readers with an overview of constitutional challenges to affirmative action policies beginning with University of California v. Bakke, and identifies the split among the circuits that resulted from the Court’s failure to endorse Justice Powell’s definition of a compelling governmental interest in Bakke. The article also includes an in-depth analysis of the Grutter and Gratz decisions, with a particular focus on each Court’s discussion of the strict scrutiny test. Finally, the article proposes a new strict scrutiny test for evaluating affirmative action admission policies, and highlights why it is appropriate to use separate tests for challenges to affirmative action programs aimed at achieving diversity in the workplace and those aimed at achieving diversity in education.


Constitutional Law

Date of this Version

February 2004