Affirmative action policies emerged in the mid-20th century as a response to the legacy of systemic inequality. They were designed to promote equal opportunity and rectify historical injustices against groups that had long been excluded from institutions of power, particularly in education and employment. Although the principle of equal treatment is a cornerstone of American constitutional law, affirmative action raises complex questions about whether the Constitution allows race-conscious remedies for past discrimination.
The Origins and Purpose of Affirmative Action
Affirmative action refers to a set of policies or practices that seek to improve access to education and employment opportunities for historically underrepresented groups. These groups include people of color, women, and others who have faced structural barriers to advancement. The earliest affirmative action initiatives came from executive actions, such as President Kennedy’s 1961 Executive Order 10925, which mandated federal contractors to “take affirmative action” to ensure non-discriminatory hiring.
By the 1970s, colleges and universities began implementing affirmative action in admissions to create racially diverse learning environments. At the heart of these policies was the belief that diversity itself was a compelling educational interest and that society had a moral and legal obligation to address enduring racial inequalities.
Critics argue, however, that such policies unfairly disadvantage individuals who do not belong to protected groups, creating new forms of discrimination. Supporters argue that affirmative action is one of the few tools available to correct structural disparities and that it helps achieve the Constitution’s promise of equal protection under the law.
Equal Protection and the Role of the Courts
The Equal Protection Clause of the Fourteenth Amendment prohibits states from denying any person within their jurisdiction the equal protection of the laws. This clause has long served as the legal basis for challenging both racial discrimination and race-conscious remedies like affirmative action.
Beginning in the 1970s, the Supreme Court began to explore whether affirmative action policies aligned with constitutional principles. The central constitutional question became whether these policies are consistent with the principle of race neutrality or if they violate the rights of majority-group individuals by using race as a criterion.
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Key Constitutional Debate: Does the Fourteenth Amendment’s guarantee of equal protection allow for race-conscious policies, or does it require that all laws be colorblind?
Regents of the University of California v. Bakke (1978)
This case marked the Court’s first major ruling on affirmative action. Allan Bakke, a white applicant, was denied admission to the UC Davis Medical School, which had set aside seats for minority applicants. Bakke claimed that this violated the Equal Protection Clause.
The Court struck down the use of racial quotas but upheld the constitutionality of considering race as one of several factors in admissions. Justice Powell’s opinion emphasized that diversity in higher education could be a compelling interest, but that race-based programs must be narrowly tailored and avoid rigid quotas.
Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003)
In Grutter, the Supreme Court upheld the University of Michigan Law School’s admissions policy, which used race as a “plus” factor in a holistic review of applicants. The Court ruled that promoting a diverse student body was a compelling interest and that the law school’s policy was narrowly tailored.
In contrast, Gratz struck down the University of Michigan’s undergraduate admissions system for assigning automatic points to minority applicants. The policy was deemed too mechanical and insufficiently individualized to pass constitutional scrutiny.
| Case | Year | Outcome |
|---|---|---|
| Regents v. Bakke | 1978 | Racial quotas unconstitutional, but race can be considered in admissions |
| Grutter v. Bollinger | 2003 | Holistic consideration of race is constitutional |
| Gratz v. Bollinger | 2003 | Point-based racial preferences struck down as too rigid |
The Colorblind Constitution Debate
Some justices and legal scholars argue that the Constitution should be interpreted as "colorblind," meaning that race should never be used to advantage or disadvantage anyone. From this perspective, affirmative action violates equal protection because it differentiates between citizens based on race.
Proponents of affirmative action argue that ignoring race does not eliminate inequality, but reinforces it. They contend that race-conscious remedies are essential for addressing centuries of legal and structural discrimination. This tension is at the core of ongoing legal battles and reflects deeper disagreements about what equality under the law truly requires.
Federalism and the Future of Affirmative Action
Affirmative action also reflects a broader struggle within American federalism: which level of government has the authority to regulate access to opportunity? While the federal government initially encouraged these policies, states have taken divergent paths. Some, like California, have banned affirmative action through ballot initiatives. Others have reaffirmed their commitment to race-conscious admissions.
The Supreme Court’s role has been pivotal in resolving these debates. In Students for Fair Admissions v. Harvard (2023), the Court ruled that race-based admissions policies at Harvard and the University of North Carolina violated the Equal Protection Clause. This decision effectively ended the use of affirmative action in college admissions, reversing decades of precedent.
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Federalism in Action: While states once resisted federal civil rights mandates, many now find themselves defending affirmative action against federal judicial intervention. This reversal shows how federalism in the U.S. often involves shifting alliances and inconsistent centers of power.
Table: Comparing Perspectives
| Perspective | Core Belief | Common Arguments |
|---|---|---|
| Pro-Affirmative Action | Race-conscious policies are necessary to remedy systemic inequality | Promotes diversity, corrects past harm, fosters inclusion |
| Anti-Affirmative Action | All individuals should be treated equally, without regard to race | Violates merit principles, constitutes reverse discrimination, is unconstitutional |
Summary
Affirmative action has long stood at the intersection of race, education, and constitutional law. What began as a policy tool to advance civil rights and diversity has now become a legal flashpoint over the meaning of equal protection. The courts have gradually narrowed the scope of permissible affirmative action policies, culminating in the 2023 decision that banned their use in higher education admissions.
These rulings reflect a broader ideological divide: whether race-conscious policies promote equality or undermine it. As public institutions respond to new legal standards, and as state governments assert different approaches under the principles of federalism, the fate of affirmative action remains uncertain.
Though the Constitution provides a framework for equality, the real challenge lies in deciding how that principle should be implemented in a diverse and unequal society.
Frequently Asked Questions
What is affirmative action and why was it created?
Affirmative action are policies meant to fix workplace and school disparities tied to race, ethnicity, gender, disability, or age by giving preferential consideration or remedial measures to historically disadvantaged groups. It was created to remedy past discrimination and to promote diversity (notably in higher education and some hiring), while also trying to level the playing field. The Supreme Court debates in cases like Regents v. Bakke, Gratz v. Bollinger, Grutter v. Bollinger, Fisher v. University of Texas, and others focus on whether these policies fit the Fourteenth Amendment’s Equal Protection Clause. Courts apply strict scrutiny: the government must show a compelling governmental interest (e.g., educational diversity) and that the policy is narrowly tailored (no racial quotas, limited use). Opponents call some programs “reverse discrimination.” Knowing these cases and concepts (strict scrutiny, compelling interest, narrowly tailored) is required for the AP exam—see the Topic 3.13 study guide (https://library.fiveable.me/ap-us-government/unit-3/affirmative-action/study-guide/xsOugenMJHpYNg6qLOdA). For broader review and practice questions, check the unit page (https://library.fiveable.me/ap-us-government/unit-3) and practice problems (https://library.fiveable.me/practice/ap-us-government).
What does the equal protection clause of the 14th Amendment have to do with affirmative action?
The Equal Protection Clause is the constitutional test that makes affirmative action legally tricky. Any government or public-school policy that classifies people by race is treated as a “suspect classification,” so the Supreme Court applies strict scrutiny. That means the policy must serve a compelling governmental interest (e.g., remedying past discrimination or achieving educational diversity) and be narrowly tailored (no race-based quotas, limited use of race as one factor). Key cases: Bakke (1978) banned rigid racial quotas but allowed diversity as a goal; Gratz (2003) struck a points-based system; Grutter (2003) upheld a narrowly tailored holistic review; Fisher and later opinions refined strict scrutiny standards. For AP stuff, you should be able to explain these debates per LO 3.13.A (see the Topic 3.13 study guide: https://library.fiveable.me/ap-us-government/unit-3/affirmative-action/study-guide/xsOugenMJHpYNg6qLOdA). For broader review, check the Unit 3 page (https://library.fiveable.me/ap-us-government/unit-3) and practice Qs (https://library.fiveable.me/practice/ap-us-government).
Why do Supreme Court justices disagree so much about whether affirmative action is constitutional?
They disagree because the issue sits at the intersection of constitutional text (Equal Protection Clause), judicial doctrine (strict scrutiny), and competing facts about race and fairness. Justices split over: (1) whether race is a “suspect classification” that triggers strict scrutiny; (2) whether achieving diversity or remedying past discrimination is a “compelling governmental interest” (Powell’s balancing in Bakke vs. later limits in Gratz/Grutter and Fisher); and (3) whether a policy is “narrowly tailored” (no quotas, but some race-conscious admissions may pass). Different interpretive philosophies (textualism/originalism vs. living-constitutionalism) and empirical judgments about harms like “reverse discrimination” vs. remedial benefits drive votes. AP-wise, you should be able to describe these debates and cite cases like Bakke, Gratz, Grutter, Fisher, and Parents Involved (LO 3.13.A) for the exam. For a focused review see the topic study guide (https://library.fiveable.me/ap-us-government/unit-3/affirmative-action/study-guide/xsOugenMJHpYNg6qLOdA); more unit resources and practice questions are at (https://library.fiveable.me/ap-us-government/unit-3) and (https://library.fiveable.me/practice/ap-us-government).
How did the Bakke case change affirmative action in college admissions?
Regents of the University of California v. Bakke (1978) changed affirmative action by rejecting rigid racial quotas but allowing race to be considered as one factor in admissions. The Court (Justice Lewis Powell’s controlling view) ruled that the school’s fixed quota system violated the Equal Protection Clause of the Fourteenth Amendment and failed strict scrutiny. At the same time Powell said “diversity” can be a compelling governmental interest, so narrowly tailored, race-conscious admissions programs are sometimes permissible—but they can’t reserve seats solely on race (that’s reverse discrimination). For the AP exam, you should know Bakke’s facts, issue, holding, and Powell’s reasoning and how it connects to later cases (Gratz/Grutter, Fisher). Review the topic study guide (https://library.fiveable.me/ap-us-government/unit-3/affirmative-action/study-guide/xsOugenMJHpYNg6qLOdA) and practice questions (https://library.fiveable.me/practice/ap-us-government) to prep for SCOTUS comparison tasks.
What's the difference between the Gratz and Grutter cases since they happened the same year?
They were decided the same year but did two different things. Gratz v. Bollinger (2003) struck down the University of Michigan undergrad point system because it gave automatic race-based points—that looked like a quota and failed strict scrutiny (not narrowly tailored). Grutter v. Bollinger (2003), about Michigan Law, upheld a race-conscious, holistic admissions policy because the Court found diversity is a compelling interest and the program was narrowly tailored (no automatic slots, individualized review). Key AP terms: strict scrutiny, compelling governmental interest, narrowly tailored, racial quotas, diversity rationale. For the exam you should be able to state facts, the issue, holdings, and reasoning for both cases (see the Topic 3.13 study guide) (https://library.fiveable.me/ap-us-government/unit-3/affirmative-action/study-guide/xsOugenMJHpYNg6qLOdA). Practice questions on these help with SCOTUS comparison prompts (https://library.fiveable.me/practice/ap-us-government).
Can someone explain Milliken v. Bradley in simple terms - I'm so confused about what it actually decided?
Milliken v. Bradley (1974) basically said: you can’t force students to be bused across school-district lines unless those other districts are proven to have caused segregation. In the Detroit case, the Court held that remedies for school segregation under the Fourteenth Amendment (equal protection) can’t reach into suburban districts unless there’s clear evidence of intentional, inter-district discrimination. So courts could order desegregation remedies only inside the district where the violation happened. Practically, Milliken limited remedial measures for segregation—making broad, metropolitan busing plans much harder—and helped preserve many racially separate school systems that resulted from housing patterns (de facto segregation). It’s an important AP example showing limits on equal-protection remedies and why later cases (and policy debates) focus on proving intentional discrimination vs. addressing systemic disparities. For a clear AP-aligned summary, see the Topic 3.13 study guide (https://library.fiveable.me/ap-us-government/unit-3/affirmative-action/study-guide/xsOugenMJHpYNg6qLOdA). For more practice, check unit resources (https://library.fiveable.me/ap-us-government/unit-3) or practice problems (https://library.fiveable.me/practice/ap-us-government).
I don't understand how affirmative action can be both legal and illegal at the same time - what am I missing?
Think of affirmative action as a tool that courts judge case-by-case using the Equal Protection Clause and strict scrutiny. A policy that uses race as a “suspect classification” must serve a compelling governmental interest (like remedying past discrimination or achieving educational diversity) and be narrowly tailored—meaning it’s limited, flexible, and not a quota. That’s why Regents v. Bakke (1978) struck racial quotas but allowed race as one factor; Gratz v. Bollinger (2003) struck a points-based quota system; Grutter v. Bollinger (2003) upheld a holistic, narrowly tailored diversity rationale; and later cases (Fisher, Parents Involved) refined strict scrutiny limits. So affirmative action programs can be legal when they meet strict scrutiny (compelling interest + narrowly tailored) and illegal when they don’t (e.g., rigid quotas or race-dominant formulas). For the AP exam, be ready to describe facts, holdings, and reasoning of these cases (LO 3.13.A). Review the Topic 3.13 study guide (https://library.fiveable.me/ap-us-government/unit-3/affirmative-action/study-guide/xsOugenMJHpYNg6qLOdA) and practice questions (https://library.fiveable.me/practice/ap-us-government).
What are the main arguments for and against affirmative action that come up in Supreme Court cases?
For Supreme Court cases, the main arguments for affirmative action are: (1) it serves a compelling governmental interest in remedying past discrimination or promoting diversity in education/workplaces, and (2) race-conscious policies can be narrowly tailored tools (not quotas) to achieve those ends—think Grutter (2003) and Justice Powell’s diversity rationale in Bakke (1978). The main arguments against it are: (1) racial classifications trigger strict scrutiny under the Fourteenth Amendment as suspect classifications and must meet the highest standard; (2) quotas or automatic preferences are unconstitutional reverse discrimination (Bakke, Gratz (2003) struck down point-based race preferences); and (3) remedies must be narrowly tailored and temporary (Fisher v. University of Texas clarified strict scrutiny application). On the AP exam you’ll often compare holdings/reasoning in SCOTUS Comparison FRQs—know facts, holdings, strict scrutiny, compelling interest, and “narrowly tailored.” For a focused review, see the topic study guide (https://library.fiveable.me/ap-us-government/unit-3/affirmative-action/study-guide/xsOugenMJHpYNg6qLOdA) and practice problems (https://library.fiveable.me/practice/ap-us-government).
How do I write an essay about Supreme Court debates over affirmative action policies?
Start with a clear thesis that answers the prompt (e.g., “Supreme Court debate over affirmative action centers on whether race-conscious policies violate the Fourteenth Amendment’s equal protection clause or are justified to achieve diversity/remedy past discrimination”). Briefly define key legal tests: suspect classification, strict scrutiny, compelling governmental interest, and narrowly tailored. Then organize body paragraphs by major rulings: Bakke (1978)—banned racial quotas but allowed race as one factor (Justice Powell); Gratz/Grutter (2003)—struck quota-like points (Gratz) but upheld holistic diversity rationale (Grutter); Parents Involved (2007) and Milliken (1974)—limits on race-based school assignments; Fisher and later cases—strict scrutiny applied to university admissions. For each paragraph, give facts, holding, and reasoning and link to the CED keywords. End by noting continuing tension (diversity vs. reverse discrimination) and how you’d use these cases as evidence on the AP SCOTUS or argument FRQ. For the topic study guide, see (https://library.fiveable.me/ap-us-government/unit-3/affirmative-action/study-guide/xsOugenMJHpYNg6qLOdA). For broader review and 1000+ practice Qs, visit (https://library.fiveable.me/ap-us-government/unit-3) and (https://library.fiveable.me/practice/ap-us-government).
Did the Parents Involved case make it harder or easier for schools to consider race?
Harder. In Parents Involved v. Seattle (2007) the Court blocked K–12 student assignment plans that used race as a tiebreaker. The decision applied strict scrutiny (race = suspect classification), saying the districts hadn’t shown a compelling governmental interest (their diversity/avoidance rationale wasn’t enough) nor that the policies were narrowly tailored. Justice Kennedy’s opinion left a very limited door open—race can’t be the decisive factor and only narrowly tailored remedies for past, official (de jure) segregation are more likely to pass—but overall the ruling significantly restricted when and how schools may consider race. For the AP exam, know the facts, holding, and reasoning here and how it connects to equal protection/strict scrutiny (see the Topic 3.13 study guide) (https://library.fiveable.me/ap-us-government/unit-3/affirmative-action/study-guide/xsOugenMJHpYNg6qLOdA). For more practice, try problems at (https://library.fiveable.me/practice/ap-us-government).
What happened after these Supreme Court cases - did affirmative action actually change in real life?
Short answer: yes—but unevenly. Supreme Court rulings shaped what colleges and governments can do, and institutions changed their policies to match. Key changes tied to cases in the CED: - Regents v. Bakke (1978): struck down racial quotas but allowed race as one factor. - Gratz v. Bollinger / Grutter v. Bollinger (2003): banned formulaic point systems (Gratz) but upheld holistic, narrowly tailored use of race for diversity (Grutter). - Fisher v. University of Texas (2013, 2016): reaffirmed strict scrutiny—race can be used only if there’s a compelling interest (diversity) and the program is narrowly tailored. - Parents Involved (2007) limited race-based school assignments. In practice: universities moved to “holistic” admissions, dropped quotas, and documented narrow tailoring. Some states passed bans on race-conscious policies. And recent rulings (e.g., Students for Fair Admissions decisions) further restricted race-conscious admissions, so many schools now use socioeconomic and geographic factors instead. For AP prep, make sure you can explain equal protection, strict scrutiny, compelling interest, and narrowly tailored—and review the Topic 3.13 study guide (https://library.fiveable.me/ap-us-government/unit-3/affirmative-action/study-guide/xsOugenMJHpYNg6qLOdA). For extra practice, see https://library.fiveable.me/practice/ap-us-government.
Why does the Supreme Court keep hearing affirmative action cases if they already decided it before?
Because affirmative action raises recurring constitutional questions (equal protection, strict scrutiny, compelling governmental interest, narrowly tailored remedies), new cases keep coming back to the Court when facts or policies differ. Past decisions (Bakke, Gratz/Grutter, Fisher) set rules but didn’t answer every situation—for example, differences between quota-like policies and individualized consideration, public K–12 vs. college admissions, or state bans vs. university programs. Also, the Court’s membership changes over time, so earlier precedent can be narrowed or overturned. Each new lawsuit tests how the Fourteenth Amendment applies to a specific policy and asks whether diversity or remedial aims meet strict scrutiny. For AP review, focus on the equal protection clause, strict scrutiny standards, and key cases listed in the CED (LO 3.13.A, EK 3.13.A.1). For a focused recap, see the topic study guide (https://library.fiveable.me/ap-us-government/unit-3/affirmative-action/study-guide/xsOugenMJHpYNg6qLOdA) and try practice questions (https://library.fiveable.me/practice/ap-us-government).
How does affirmative action for race compare to affirmative action for gender or disability?
Short answer: affirmative action for race faces the toughest constitutional review. Race is a “suspect classification,” so courts apply strict scrutiny—the government must show a compelling governmental interest (e.g., remedying past discrimination or educational diversity) and that the policy is narrowly tailored (no racial quotas). Key cases: Bakke, Gratz/Grutter, Fisher. By contrast, gender-based classifications get intermediate scrutiny: the government must show an important interest and that the measure is substantially related to that interest (less demanding than strict scrutiny). Disability isn’t a suspect class; legal protection usually comes from statutes (ADA, Rehab Act) that require reasonable accommodations and prohibit discrimination—courts typically don’t use strict scrutiny, and many disputes are resolved under statutory standards rather than Equal Protection strict scrutiny. For the AP exam, be ready to connect these standards to cases (Bakke, Gratz/Grutter, Fisher) and terms like strict scrutiny, compelling interest, narrowly tailored, intermediate scrutiny, and remedial measures (see the Topic 3.13 study guide: https://library.fiveable.me/ap-us-government/unit-3/affirmative-action/study-guide/xsOugenMJHpYNg6qLOdA). For extra practice, check Fiveable’s practice questions (https://library.fiveable.me/practice/ap-us-government).
What are the long-term effects of these Supreme Court decisions on college admissions and hiring?
Long-term effects: The Court’s decisions created clear limits on how race can be used in admissions and hiring. Cases like Regents v. Bakke and Grutter allowed race-conscious policies under the Fourteenth Amendment only when they meet strict scrutiny—a compelling governmental interest (e.g., educational diversity) and are narrowly tailored (no quotas). Gratz struck down point-based racial bonuses; Fisher reinforced strict-scrutiny review. More recently, decisions have continued narrowing permissible uses of race, pushing colleges and employers toward race-neutral, holistic factors (socioeconomic status, life experience, targeted outreach) to achieve diversity. Consequences: fewer explicit racial quotas, more litigation over “reverse discrimination,” widespread adoption of individualized review, state bans on affirmative action in public institutions, and cautious employer hiring practices. For the AP exam, be ready to explain the Equal Protection/strict scrutiny framework and cite key cases (LO 3.13.A). For review, see the Topic 3.13 study guide (https://library.fiveable.me/ap-us-government/unit-3/affirmative-action/study-guide/xsOugenMJHpYNg6qLOdA) and practice questions (https://library.fiveable.me/practice/ap-us-government).