EQUAL PROTECTION, DUE PROCESS, AND AFFIRMATIVE ACTION: DOES IT MATTER IF THE

SUPREME COURT MISAPPLIED STRICT SCRUTINY IN GRUTTER AND FISHER?

INTRODUCTION

In general, whites are two times more likely to get a bachelor’s degree than blacks, a

startling discrepancy; however, students from prosperous educated families are seven times more

likely to receive a bachelor’s degree than students from low-income less educated families. 1

Even so, the Supreme Court’s decisions are limited to educational disadvantages closely linked

to race, rather than class.2 States have begun passing legislation and even amending state

constitutions to prohibit state government institutions from using race, sex, or ethnicity in public

education.3 This paper discusses the risks and limitations of race-based considerations in current

affirmative action jurisprudence surrounding higher education by criticizing the Supreme Court’s

decisions in Bakke, Grutter, and Fisher.

In Plessy v. Ferguson, the Supreme Court upheld laws that mandated that blacks and

whites use “separate, but equal facilities.” The Court declared that “separate, but equal” facilities

are constitutional.4 By the late 1940’s the Supreme Court had firmly established that the

classification based on race or national origin must be suspect and subject to “strict review under

the equal protection guarantee” of the Fourteenth Amendment. 5 In 1954, without expressly

1
William G. Bowen, Matthew M. Chingos, and Michael S. McPherson, Crossing the Finish Line:
Completing college at America’s Public Universities, PRINCETON UNIV. PRESS, 193–96 (2009).
2
Infra, notes 3-17.
3
4
Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138 (1896):
[W]e cannot say that a law which authorizes or even requires the separation of two races
in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment
than the acts of Congress requiring separate schools for colored children in the District of
Columbia, the constitutionality of which does not seem to have been questioned or the
corresponding acts of state legislatures.
5
Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193 (1944); See also Ronald D. Rotunda & John E.
Nowak, Treatise on Constitutional Law: Substance and Procedure, § 18.8(d)(ii)(1) (5th ed. 2012)
overruling it,6 the Court abandoned the “separate, but equal” doctrine of Plessy in its decision in

Brown v. Board of Education7 and opened the door to the establishment of racial equality in

education as a constitutional principle. 8 Even though the Court finally deemed that the

government could not classify persons by race to impose a burden or deny benefits,9 they did not

decide whether the government may have “affirmative action” programs to grant some form of

remedial preference to minority races. 10

Affirmative Action in the workplace soon evolved 11 when the United States brought suit

under Title VII of the Civil Rights Act of 1964 against an employer and union for engaging in

discriminatory hiring.12 By 1978, the Supreme Court – in a decision comprising six opinions

with two separate majorities – ruled that the Davis Medical School admissions program violated

the Title VI of the Civil Rights Act of 1964 and was struck down.13 With 25 years since Bakke in

(explaining that the equal protection guarantee may be the “single most important concept in the
Constitutional protection of individual rights.”).
6
Brown v. Board of Education, 347 U.S. at 495, 74 S.Ct. at 692 (holding narrowly that the separate but
equal doctrine had no place in education only).
7
347 U.S. 483 (1954).
8
Bickel, The Original Understanding and the Segregation Decision, 69 HARV.L.REV. 1, 59 (1955). See
also Rotunda & Nowak, supra note 2.
9
See, Parents Involved In Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)
(debating over the principles established in Brown); 42 U.S.C.A. § 2000(d):

No person in the United States shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.
10
John E. Nowak, The Rise and Fall of Supreme Court Concern for Racial Minorities, 36 WILLIAM &
MARY L. REV. 345 (1995); Melissa L. Saunders, Equal Protection, Class Legislation, and
Colorblindness, 96 MICHIGAN L.REV. 245 (1997); Tanya K. Hernandez, “Multiracial” Discourse: Racial
Classifications in an Era of Color-Blind Jurisprudence, 57 MARYLAND L. REV. 97 (1998).
11
International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977).
12
Id. at 330.
13
See Generally Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Four of the
Justices – Chief Justice Burger and Justices Stewart, Rehnquist, and Stevens – concluded that the Davis
program violated Title VI of the Civil Rights Act. Justice Powel found that the Davis program violated
the Equal Protection Clause of the Fourteenth Amendment. Justices Brennan, White, Marshal and
Blackmun believed that Title VI was only meant to bar racial discrimination under the Fourteenth
Amendment and that the Davis program did not violate either.
1978 and the next defining Supreme Court Case, there was little guidance on how to determine

the constitutionality of a university’s consideration of race in the admissions process. However,

Justice Powell’s lone opinion from Bakke would be utilized to uphold the University of

Michigan’s Law School’s race aware admissions policy. 14

In Grutter v. Bollinger, 15 there was finally a majority opinion that would provide a proper

framework on whether the use of race in university admissions process constituted a “racial

classification”16 Writing for the majority, Justice O’Connor’s opinion came under attack by the

dissenting Justices; the dissenters believed that the majority had not used a true strict scrutiny

test because the majority failed to demand that the government show that the Law School

admissions policy was necessary to promote a compelling government interest.17

The Supreme Court struggled through history to properly apply the strict scrutiny test in

higher education. Decisions from Grutter to Fisher have done nothing more than highlight the

growing irrelevance of affirmative action jurisprudence. Furthermore, changing national norms

will allow colleges and universities to achieve a diverse student body by granting

socioeconomic-preference in admissions policies, thus side-stepping strict scrutiny entirely and

creating a truly diverse student body.

Part I of this paper suggests that the application of strict scrutiny in the past Supreme

Court cases involving higher education has been misapplied. More specifically, that the Supreme

Court in Grutter –where the Court did not appropriately apply the standard of “Strict Scrutiny”

and upheld the University of Michigan’s Law School’s race conscious admissions policy—

14
Grutter v. Bollinger, 539 U.S. 306, 320 (2003).
15
539 U.S. 306 (2003).
16
Id. at 324-26.
17
Id. at 386-95 (Kennedy, J., dissenting); Id. at 583 (Dissenting opinion of Rehnquist, C.J., joined by
Scalia, Kennedy and Thomas, JJ., dissenting).
improperly promotes the theory that preferential treatment for racial minorities is both a

compelling government interest and the current manner in which universities apply it is indeed

narrowly tailored. Furthermore, the Court’s recent application of strict scrutiny in Fisher v.

University of Texas, failed to correct the wrongs in Grutter, thus rendering its opinion

inconsequential to the admissions decision-making process.

Part II of this paper suggests that the racial equality in higher education, though a

fundamental right, no longer needs the use of Affirmative Action programs to achieve an

important governmental interest; but finds that changing societal norms and passing of state

legislation provides that it may be on its way out. The Court gave deference to Michigan’s

Admissions Policy in Grutter because they found that racial diversity in higher education was an

important governmental objective. 18 Affirmative action and diversity in higher education was

utilized to correct harms against racial minorities. The Supreme Court has found that racial

equality in education was an unenumerated fundamental right and that denial of such a right was

a violation of the Equal Protection Clause of the Fourteenth Amendment. The Court has used the

Due Process Clause in the Fifth Amendment to provide a substantive due process analysis of

defining a fundamental right.

Part III of this paper will analyze discuss the application of changing national values and

the role it plays in the use of Affirmative Action plans. Furthermore, this portion of the paper

will analyze and interpret the substantive due process arguments for the discontinuance of

Affirmative Action Programs.

In Part IV, this paper proposes a more effective determination of diversity and an

adoption of an approach that would indirectly produce racial and ethnic diversity without the use

18
Id. at 320.
of race-based affirmative action plans. More specifically, this portion of the paper inspects

economic diversity as a race-neutral alternative as implemented by the Universities of Texas,

California, and Washington.

I. THE ORIGIN OF STRICT SCRUTINY AND ITS APPLICATION IN HIGHER EDUCATION

CASES

A. The Evolution of Strict Scrutiny

The Strict Scrutiny Test did not originate with the race or sex discrimination in the

workplace or in higher education nor did it originate with one of the initial applications when the

United States detained individuals of Japanese descent during World War II. 19 It was as early as

the 1800’s that the lower courts used the terminology now found in modern day strict scrutiny

test.20 More modernly in 1938, the Supreme Court would suggest this mode of judicial review in

constitutional cases in the famous “footnote four” of United States v. Carolene Products.21

19
Korematsu v. United States
20
See Booher v. Worrill, 57 Ga. 235, 238 (1876) (holding that contracts between relatives to retain family
property would go to statisfy creditors and are to be subject strict scrutiny, “a vigilant judicial police.”);
Altshuler v. Coburn, 38 Neb. 881, 889 (1894) (explaining that conveyances and transactions between
debors and his relatives are always suspicious and to be regarded with strict scrutiny because they are
usually badges of fraud.); see also Greer v. Altoona Warehouse Co, 20 So. 2d 513, 514-15 (Ala. 1945).
21
United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938):

There may be narrower scope for operation of the presumption of constitutionality when
legislation appears on its face to be within a specific prohibition of the Constitution, such
as those of the first ten amendments, which are deemed equally specifically when held to
be embraced within the Fourteenth . . .
It is unnecessary to consider now whether the legislation which restricts those political
process which can ordinarily be expected to bring about repeal of undesirable legislation,
is to be subjected to more exacting judicial scrutiny under the general prohibitions of the
Fourteenth Amendment than are most other types of legislation . . . Nor need we enquire .
. . whether prejudice against discrete and insular minorities may be a special condition,
which tends seriously to curtail the operation of those political processes ordinarily to be
relied upon to protect minorities, and which may call for a a correspondingly more
searching judicial inquiry . . . .
 In Carolene Products, the Congress had passed legislation that prohibited the interstate

shipment of “filled” milk.22 Justice Stone stated that “where the legislative judgment is drawn in

question, must be restricted to the issue whether any state of facts either known or which could

reasonably be assumed, affords support for [the legislation].” 23 Through Carolene Products,

economic legislation would be judged by a standard known as “rational basis”: which deems that

as long the law is a “rational” way of furthering any “legitimate” government purpose, it is

valid.24 This initial standard of review was viewed as very flexible and lenient, but Justice Stone

would suggest the possibility of using a more vigorous judicial mode, a “more searching judicial

scrutiny” for laws that may touch upon fundamental rights or racial discrimination.25

The Supreme Court would refine the judicial mode from Carolene Products and

introduce the exact term “strict scrutiny” in Skinner v. Oklahoma.26 In Skinner, the Court held

unconstitutional a statute which authorized the sterilization of persons previously convicted and

sentenced to imprisonment two or more times of crimes “amounting of felonies of moral

turpitude” in the state. 27 The Court noted that the statute dealt with “one of the basic civil rights

of man . . . . Marriage and procreation [were] fundamental to the very existence and survival of

the race.”28 The Court required strict scrutiny of the classification for “[w]hen the law [laid] an

unequal hand on those who [had] committed intrinsically the same quality of offense and

22
304 U.S. at 154, 58 S.Ct. at 784.
23
Id.
24
See, e.g., Ry. Express Agency v. New York, 336 U.S. 106, 110 (1949) (applying rational basis to an
economic classification).
25
304 U.S. at 152, 58 S.Ct. at 783.
26
Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
27
Id.
28
Id.
sterilize[d] one and not the other, it [made] as invidious a discrimination as if it had selected a

particular race or nationality for oppressive treatment.” 29

The issue would eventually become one of identifying what rights or values were of such

a nature that they should be judicially enforced against the other branches of the government, this

is the scenario faced in Bakke and Grutter.

B. The Application of Strict Scrutiny in Bakke

In upholding the University of Michigan’s Law School’s admissions policy, the Supreme

Court relied on the 1978 opinion of Justice Powell. The Court’s imprecise application of strict

scrutiny in Grutter can be traced back to the Justice Powell opinion in Bakke. Finding where

Bakke failed is important because it would eventually affect the admissions process for the next

25 years. In Bakke, the University of California Medical School set up to separate admissions

tracks for minority and nonminority applicants.30 The students were evaluated based upon grade

point average, MCAT score, grades in science courses, letters of recommendations,

extracurricular activities, as well as an interview. 31 But nonminority applicants were not

compared to minority applicants because 16 out of the 100 seats for the incoming class were

reserved for racial minorities, resulting in quota system that insulated minority applicants from

competition with nonminority applicants. 32 In the end, the Supreme Court ruled that the quota

system was unconstitutional because it was not narrowly tailored. 33

29
Id. (noting that an individual convicted and sentenced three times of larceny could be subjected to
sterilization but an individual convicted and sentenced three times of embezzlement would be free from
sterilization no matter how many times or often such and individual did so. Furthermore, the Court noted
that the decision was an artificial distinction drawn between larceny and embezzlement, two crimes that
are nearly the same in nature.).
30
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
31
Id. at 274-74.
32
Id. at 291, 305-06.
33
Id. at 316 (rejecting the university’s use of a quota to achieve its diversity goal, while stating that under
Harvard’s plan, diversity operated as a “plus factor” for applicants who met initial academic criteria.); Id.
 In the later part of the 1960’s, the policy of the federal government began to shift and the

Court would take a position, that the government could not deny benefits to members of minority

races nor impose race-based classifications to impose a burden. 34 However, the Court left the

question undecided: whether the government may have “affirmative action” programs which

classify individuals according to race, in efforts to remedy underrepresentation of racial

minorities by granting race-based preferences. Justice Powell found that the Davis Medical

School admissions program violated the equal protection clause and, therefore, Title VI of the

Civil Rights Act, but did not believe that all race conscious affirmative action programs would be

invalid.35 At the end of the day, Bakke left lower courts with an unclear decision on exactly how

to apply strict scrutiny to affirmative action in higher education. In essence, Bakke means that

when an admissions program of an institute of higher education that was receiving federal funds

attempts to use “clear, strict racial preferences,” such as those of the Davis Medical School, will

be held to violate Title VI and the Equal Protection Clause of the Fourteenth Amendment. 36

In Bakke, Justice Powell applied the strict scrutiny test to the Davis Medical School

admissions program and found it lacked constitutional muster.37 All racial classifications are

inherently suspect and subject to the strict scrutiny test. Throughout his opinion, Justice Powell

continually endorsed the traditional notion that such a classification must be necessary to

promote a “compelling” interest and that it must be tailored to promote a “substantial” interest. 38

at 318-19 (noting that difference between the University of California’s plan and the Harvard program, in
that the Harvard program “treats each applicant as an individual in the admissions process.”).
34
42 U.S.C.A. § 2000(d).
35
438 U.S. at 271-84, 98 S. Ct. at 2738-45, 2763-64 (opinion of Powell, J.).
36
Id.
37
438 U.S. at 307, 98 S.Ct. at 2757 (Powell, J.).
38
Compare 438 U.S. at 314 with 438 U.S. at 320 (Powell, J.) (Stating that “attainment of a diverse
student body clearly is a constitutionally permissible goal for an institution of higher education. Academic
Freedom, though not a specifically enumerated constitutional right, long has been viewed as a special
Though there is some difference between the languages of what Justice Powell applied versus

what traditionally was at actual interest, it seems to be interpreted as sufficient. 39 Justice Powell’s

exact phrase concerning strict scrutiny was “inexact term.” 40 It is this imprecision that would

eventually lead the Court in Grutter to inappropriately applying a sort of intermediate scrutiny

rather than strict scrutiny.

C. Level of Scrutiny Applied in Grutter: Intermediate Scrutiny or Strict Scrutiny?

In Grutter, Justice Kennedy inspected the university’s admissions policy and found that

the use of numerical goals for enrollment of racial minorities could never be considered narrowly

tailored.41 While the main party of dissenters argued that diversity in higher education was not a

“compelling governmental interest,”42 Justice Kennedy believes that it is; thus satisfying the first

prong of the test. However, it is in the tailoring of the admissions programs at Michigan’s Law

School that he found wanting;43 much like Justice Powell in Bakke, where the Davis Medical

School was also lacking.

Similarly, Justice O’Connor, writing for the majority in Grutter, found that diversity in

higher education could be a “compelling government interest;”44 however, that’s where the

similarities end. Justice O’Connor, under the so called rigors of the strict scrutiny test, found that

the test was not “fatal” and that the “context matters when reviewing race-based government

action.”45 It is this language that puts the majority at odds with the rest of the court. It is the fact

concern of the First Amendment. The freedom of a university to make its own judgments as to education
includes the selection of its student body . . . .).
39
Id. at 314.
40
438 U.S. at 287–88, 98 S.Ct. at 2746–47 (Powell, J.).
41
539 U.S. at 386–95, 123 S.Ct. at 2370–74 (Kennedy, J., dissenting).
42
Grutter v. Bollinger, 539 U.S. 306, 378, 123 S.Ct. 2325, 2365, 156 L.Ed.2d 304 (2003) (Rehnquist,
C.J., joined by Scalia, Kennedy, and Thomas, JJ., dissenting)
43
539 U.S. at 386–95, 123 S.Ct. at 2370–74 (Kennedy, J., dissenting).
44
539 U.S. at 307, 123 S. Ct. at 2328.
45
Id.
that the majority recognized that Michigan’s Law School did not examine every race neutral

alternative of achieving a diverse student body, 46 coupled with the Justice O’Connor’s language,

along with the majority finding that “narrow tailoring does not require exhaustion of every

conceivable race-neutral alternative,”47 marks a clear indication that strict scrutiny was not the

test employed by the Court.

Strict scrutiny requires deference to be given to the individual crying folly and the burden

of proof placed on the government. However, such was not the case in Grutter. Justice O’Connor

and the majority opinion found that it was necessary that some deference or latitude should be

granted to the educational decision makers (the government), 48 rather than granting the deference

to the individual. Additionally, it was the burden of Michigan’s Law School to prove that the

admission policy they had implemented was “narrowly tailored.” However, Justice O’Connor let

them off the hook on that one as well because the law school’s admission system did not

guarantee admission for a particular class based on numerical standardized test scores.49 Further

evidence was Justice O’Connor’s reliance upon the finding that the University of Michigan Law

School did not use a quota system, but made individualized inspections and considerations of

each applicant, and as such, did not set aside a number of seats exclusively for minorities. 50

Justice O’Connor continues to point out that the faculty and Law School officials wanted a

“critical mass” of minority students and that a critical mass was not a quota. 51

The Court in Grutter allowed the facts to fulfill the narrow tailoring requirement of the

strict scrutiny test. The Court did not require Michigan Law School to prove that this method of

46
Id.
47
Id.
48
539 U.S. at 332, 335, 123 S.Ct. at 2341, 2343.
49
539 U.S. 306, 310–15, 332–43, 123 S.Ct. 2325, 2331–32, 2341–47.
50
539 U.S. at 332, 334, 123 S.Ct. at 2339, 2342.
51
Id.
achieving a diverse body was narrowly tailored; nor did the Court require Michigan Law School

to provide evidence of some sort of list of possible remedies had been exhausted. Rather, Justice

O’Connor steps in for the majority opinion and finds that the “narrow tailoring does not require

exhaustion of every conceivable race-neutral alternative,” thus granting deference to Michigan

Law School, and placing the burden of proving the action is narrowly tailored, upon the

individual.52

It is unclear what explicit theories the majority wanted advanced – through approval of

Michigan’s Law School admissions policies – when they applied the wrong level of scrutiny.

Perhaps it is as simple of a finding that “student diversity” really does enrich society and the

learning process. For whatever reasons one might conjure, Grutter’s closing words left by the

majority opinion, Justice O’Connor expressed hope that the need for race conscious admissions

programs would not be needed to protect and achieve true equality in higher education. 53

Additionally, Justice O’Connor stated, “we expect that 25 years from now, the use of racial

preferences will no longer be necessary to further the interest approved today.” 54 Has that day

arrived 11 years post-Grutter?

II. CHANGING SOCIETAL NORMS: IS AFFIRMATIVE ACTION IN HIGHER

EDUCATION ON ITS WAY OUT?

Dr. Martin Luther King Jr., our nation’s idealist and proponent for racial equality, had

always fought for a “color-blind” Bill of Rights for the disadvantaged. 55 The use of Affirmative

52
539 U.S. at 337, 123 S.Ct. at 2344.
53
539 U.S. 306, 343–45 123 S.Ct. 2325, 2347–48.
54
539 U.S. at 343, 123 S.Ct. at 2347 (this statement is made in the last sentence of Part III of the majority
opinion).
55
MARTIN LUTHER KING, JR., Why We Can’t Wait , New York: New American Library, 134 (1964):

It is impossible to create a formula for the future which does not take into account that our
society has been doing something special against the Negro for hundreds of years . . . While
Action programs were initially thought to be used as a temporary form of relief and that

discrimination in favor of students of color would have been counter-productive to a goal of

racial equality.56

A. The Views of the American Public

The general public and Americans are becoming more aware and better understanding of

racial inequalities in higher education. As Americans become more aware, they have begun to

see that the bigger obstacle to equality in education is not based on race, but is based on

economic disparity. For example, in 2003, a survey in the Los Angeles Times found that

Americans opposed the University of Michigan’s racial preference policy by 56 percent to 26

percent.57 However, those same individuals polled in the Los Angeles Times supported

preferential treatment for low-income students by about the same degree, 59 percent to 31

percent.58 Similarly, a Newsweek poll during the same time had found nearly identical

comparisons for American’s who supported racial preference at 26 percent when compared to

those who did not support racial preference at 65 percent. 59 In terms of those in favor of

economic preferences, the Newsweek poll indicated that 65 percent of those polled would support

Negroes form the vast majority of America’s disadvantaged, there are millions of white
poor who would also benefit from such a bill . . . It is a simple matter of justice that
America, in dealing with creatively with the task of raising the Negro from backwardness,
should also be rescuing a large stratum of the forgotten white poor. . . .
56
See RICHARD D. KAHLENBERG, The Remedy: Class, Race, and Affirmative Action, 26 (New York:
Basic Books, 1996); see also ABIGAIL AND STEPHAN THERNSTROM, America in Black and White: One
Nation Indivisible, 427 (New York: Simon and Schuster, 1997); see ALSO ELEANOR HOLMES NORTON, chair
of the Equal Employment Opportunity Commission under President Jimmy Carter, acknowledging that “there is a
general consensus in our society” that affirmative action “ought to be temporary.”
57
Los Angeles Times poll (conducted January 30, 2003 through February 2, 2003).
58
Id.
59
Newsweek poll (conducted January 16-17, 2003).
economic preference over racial preferences. 60 These polls are evidence of the changing views of

the American people towards racial preference in higher education admissions policies.

While it is often argued and in some cases true, that universities try to minimize racial

preference by calling it a “single factor” of many other when compared to equally qualified

candidates. There are consistent findings that institutions of higher education are using race in a

much more indicating manner, that race is used more than a “tie-breaker.”61 Most Americans

would view these advantages to racial minorities if such policies truly were helping poor and

working class students of racial minorities; as indicated by the above poll results. Many

Americans recognize that disadvantages and lack of opportunity in education are more closely

related to class rather than race. 62

As circumstances change and the nation continues to evolve – much like the time

between the days of slavery and state-sanctioned segregation – race-based affirmative action

plans are becoming much less pressing of a problem with the rise of the new generations of

Americans.63 Additionally, President Obama – a supporter of racial preference in the current

University of Texas case in the Supreme Court – believes that racial preferences, when used not

60
Id.
61
See THOMAS J. ESPENSHADE AND ALEXANDRIA WALTON RADFORD, No Longer Separate, Not Yet
Equal (Princeton, N.J.: Princeton University Press, 2009), 92, Table 3.5.; see also WILLIAM G. BOWEN,
MARTIN A. KURZWEIL, AND EUGENE M. TOBIN, Equity and Excellence in American Higher Education
(Charlottesville, Va.: University of Virginia Press, 2005), 105, Table 5.1.
62
See SEAN REARDON, The Widening Academic Achievement Gap Between Rich and Poor: New
Evidence and Possible Explanations, in Whither Opportunity? Rising Inequality, Schools, and Children’s
Life Chances, GREG J. DUNCAN AND RICHARD J. MURNANE, 93-98 (New York: Russell Sage Foundation
and the Spencer Foundation, 2011).
63
See Michael A. Fletcher and Jon Cohen, Far Fewer Consider Racism Big Problem, WASHINGTON
POST, January 29, p. A6; See also New York Times/CBS News Poll, October 25–29, 2008
available at http://www.nytimes.com/packages/pdf/politics/oct08e.trn.pdf
(finding that the proportion of people who say blacks “have an equal chance of getting ahead” rose to 64
percent, up from 46 percent in 1997).
accounting for class, are troublesome. 64 Furthermore, President Obama stated in a 2008 speech in

Philadelphia that “[m]ost working-and middle-class white Americans don’t feel that they have

been particularly privileged by their race.” 65 These general statements are ideas that the

American public can relate to, especially considering the backdrop of the nation’s economic

problems coupled with high unemployment rates amongst the working class citizens.

It’s not enough that the ideas of racial preference and affirmative action plans in higher

education don’t sit well with the American public. Before changes occur, there must be further

substantial evidence than the mere polling of the American people along with a few statements

made by the current President of the United States.

B. State Action Banning Affirmative Action in Higher Education Admissions

There are a total of nine states that have statutorily banned the use of racial and ethnic

preference at state universities. Seven of those nine states have a combined population of high

school students greater than one-quarter all American high school students. Texas, California,

Washington, Florida, Georgia, Michigan, Nebraska, Arizona, and New Hampshire have all

passed state legislation prohibiting the use of racial preferences in some form.

In Texas, after the ban on affirmative action plans in admissions, the state legislature

passed H.B. 588, known as the Top 10 Percent Plan, as a means to provide a proper alternative

to using racial preferences in university admissions process.66 The bill guaranteed high school

64
Barack Obama on This Week with George Stephanopoulos, ABC News, May 13, 2007, transcript
available at http://blogs.suntimes.com/sweet/2007/05/obama_on_abcs_this_week_with_g.html (stating
that his own daughters, although black, are privileged and do not deserve a preference in admissions to
institutes of higher education.).
65
Barack Obama, A More Perfect Union, Speech on Race, Philadelphia, Pennsylvania, March 18, 2008,
available at http://www.npr.org/templates/story/story.php?storyId=88478467
66
“SB 175,” Texas Legislature Online,
http://www.legis.state.tx.us/billlookup/History.aspx?LegSess=81R&Bill=SB175; and “Bill Analysis: S.B.
175,” Texas Legislature Online,
http://www.legis.state.tx.us/tlodocs/81R/analysis/pdf/SB00175F.pdf#navpanes=0.
seniors in the top 10 percent of their class, admission to the public Texas university campus of

their choice.67 In 2009, the legislature in Texas amended H.B. 588 to limit the percentage of Top

10 admits to 75 percent of the incoming class at UT Austin.68

Like Texas, California enacted Proposition 209, which banned the state government from

using racial preferences in public employment, contracting, and education. 69 California amended

their state constitution 70 and began implementing a series of Percent Plans to help account for

economically disadvantaged college applicants.71 In the fall of 1998, students were admitted to

the University of California under the new race-neutral policy.72

Like Texas and California, Washington enacted its own legislation which limited public

institutions in from giving preferential treatment based on race. 73 In 1999, the University of

Washington took a different approach and created a “holistic review” of applicants in the

admissions process.74 This holistic review took into account “Personal Achievements and

Characteristics,” which include; demonstrating a commitment to community service and

leadership; exercising significant responsibility in a family, community, employment, or other

activities; attaining a college-preparatory education in the face of significant personal adversity,

67
Id.
68
Id.
69
Cal. Const. art. I, § 31
70
Id.
71
University of California Eligibility and Admissions Study Group, FINAL REPORT TO THE PRESIDENT,
April 2004.
Available at: http://www.universityofcalifornia.edu/news/compreview/studygroup_final0404.pdf.
72
Id.
73
WASHINGTON STATE CIVIL RIGHTS INITIATIVE 200, available at
http://www.sos.wa.gov/elections/initiatives/text/i200.pdf.
74
See “Diversity Council,” University of Washington,
http://www.washington.edu/diversity/divcoun/index.shtml; see also “Freshman Review,” University of
Washington Office of Admissions, http://admit.washington.edu/Admission/Freshmen/Review; see also
“Writing Section Instructions,” University of Washington Office of Admissions,
http://admit.washington.edu/Admission/Freshmen/WritingSection.
economic disadvantage, or disability; demonstrating cultural awareness or unique perspectives or

experiences; and demonstrating notable tenacity, insight, originality or creativity. 75

The trend in these few states discussed, shows that state legislatures and university

admission boards have acknowledged a greater indication and resource of diversity in the setting

of higher education. There are alternatives to a race-based admissions model, such alternatives

are facially neutral, and are still able to fulfill an important governmental interest.

III. AFFIRMATIVE ACTION AND THE SUBSTANTIVE DUE PROCESS ARGUMENT

When societal norms and national values evolve, the Supreme Court has stepped in to

prematurely acknowledge the existence of a fundamental right. 76 The changing societal views

discussed above in Part II of this paper, can be compared to other unenumerated fundamental

rights to show that affirmative action plans in higher education are unwarranted. 77

A. True Equality in Higher Education: An Unenumerated Right Implicit in the Concept of

Ordered Liberty

In Griswold v. Connecticut, 78 the court held a statute that prohibited the right to use

contraceptive devices among married persons. The majority opinion found that the statute

impermissibly limited the right of privacy of married persons.79 The law violated the due process

75
Id.
76
Compare Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258 (1997) (finding a fundamental right
that is unenumerated when viewed within the context of history and tradition); with Lawrence v. Texas,
539 U.S. 558, 123 S. Ct. 2472 (2003) (showing that state laws concerning homosexual acts that were
never enforced or stricken down, allowed the Court to acknowledge the existence of such a right and need
to intercede); and Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965) (creating a married
person’s right to privacy and use contraceptive devices, though no such right is explicitly enumerated.).
77
See Supra Part II.B.
78
Griswold, 381 U.S. at 480.
79
Id.
clause because it deprived married persons the liberty protected by this fundamental right. 80 Even

though the rights of privacy are not explicitly stated within the Constitution or its amendments;

Justice Douglas could not rely upon a textual basis for this “right of privacy.” 81 In order to justify

the decision of the Court to invalidate the statute, Justice Douglas did so on the basis that it

infringed upon some general area of liberty; that the “penumbras and emanations” of several

guarantees of the Bill of Rights together created a new “right to privacy.”82 To further bolster the

majority opinion, Justice Douglas turned historical values into a specific guarantee to help justify

the Court’s decision.83

Much like the right of privacy, the right to equal opportunity in education can fall under

the same analysis. Affirmative action prevents low-income, low socio-economic status white

applicants from receiving the same opportunities as a middle-class African American college

applicant. Under this analysis from Griswold, one could say that there is something about this

scenario that seems wrong. There’s no enumerated right to provide equal opportunities in

attaining higher education for individuals coming from low socio-economic status, but the court

found a fundamental right for those of racial minorities in the same scenario.

B. True Equality in Higher Education: An Unenumerated Right from Evolving National

Values

In Lawrence v. Texas, the Court by a six-to-three vote invalidated a statute that prohibited

persons from engaging in sodomy with a person of the same sex. 84 Justice Kennedy, writing for

the majority, believed that they could invalidate the statute on the basis for future judicial actions

80
Id.
81
Id.
82
Id. at 499.
83
Id.
84
Lawrence, 539 U.S. at 560.
that would invalidate any laws that judges thought were unreasonable even if it resulted in

judicial usurpation of legislative functions.85 Justice Kennedy based this justification upon a

forward-looking approach that used history as the starting point; but more importantly and

weightier, viewed the “emerging recognition” as evidence to the establishment of a fundamental

right.86 The majority opinion in Lawrence raises important questions regarding the trajectory of

future evolving national values, 87 but one thing is certain; Lawrence is an affirmation of

substantive due process.88

The aftermath of Lawrence has provided framework for recognizing an unenumerated

right. First, it is necessary to look at the evolving national values because they may show a

trend.89 Second, state laws and how they are enforced should be inspected along with the number

of states enacting or striking down similar laws. 90 Third, the framework calls upon the legal

elites, publications and sources of knowledge that are reliable and indicative of a shift in the

law.91 These publications and sources are usually publications from organizations like the

American Law Institute. 92

85
539 U.S. 558, 586, 123 S.Ct. 2472, 2488, 156 L.Ed.2d 508 (2003) (Scalia, J., joined by Rehnquist, C.J.,
and (Thomas, J., dissenting), on remand 2003 WL 22453791 (Tex.App.2003); 539 U.S. at 604, 123 S.Ct.
at 2498 (Thomas, J., dissenting).
86
539 U.S. at 571-72, 597-598.
87
See Flaskamp v. Dearborn Pub. Schs., F.3d 935, 941-42 (6th Cir. 2004); see also Hutchison v.
Brookshire Bros., 284 F. Supp. 2d 459, 467 (E.D. Tex. 2003); see also In re Marshall, 300 B.R. 507, 524
(Bankr. C.D. Cal. 2003).
88
See Tennessee v. Lane, 541 U.S. 509, 562-63 (2004) (Scalia, J., dissenting) (referring to the “so-called
‘substantive due process”’ under which the Court protects unenumerated rights).
89
Powers v. Harris, 379 F.3d 1208, 1224 (10th Cir. 2004) (involving the constitutionality of a state law
prohibiting the internet sale of burial caskets by non-licensed funeral directors).
90
No. 04-2-04964-4-SEA, 2004 WL 1738447 (Wash. Super. Ct. Aug. 4, 2004); Loving v. Virginia, 388
U.S. 1, 12 (1967) (finding that a right to marry was a fundamental right); see also Zablocki v. Redhail,
434 U.S. 374, 386 (1978); Turner v. Safley, 482 U.S. 78, 95 (1987) (adopting the framework left by
Lawrence to construe a constitutional right broadly).
91
Lawrence, 539 U.S. at 598.
92
Id.
 Applying the same substantive due process framework from Lawrence to the necessity of

affirmative action plans would require the finding of a right to equality in higher education. The

right needs to be framed in a manner that would highlight the importance of equality being

“color-blind” in its application. First – as mentioned in Part IIA – the American public does not

sit well with racial preferences granted at the admissions level of institutes of higher education.

However, the polls taken after the Grutter aftermath indicate that the American public would

support economically-disadvantaged preference at the admissions level. 93 These polls are

evidence that affirmative action plans are not just merely unwanted, but the public feels the

affirmative action plans are inadequate in fulfilling its goal.

Second, nine states have now enacted a statutory ban on the use of race or any type of

affirmative action plan in government hiring, education, and contracts. 94 Of these nine states,

seven of them make up more than 25 percent of all American high school students applying to

college.95 Considering the polls with the states striking down affirmative action plans, there is a

clear indication of a trend, shifting away from affirmative action to the use of socio-economic

status as more useful indicia of diversity. Third, scholarly treatises and journals have begun

publish articles and reports concerning the matter. 96

It is clear that the use of affirmative action is on its way out. Although the Supreme Court

upheld the 11-year old Grutter framework in Fisher v. University of Texas; there is no doubt that

93
Los Angeles Times poll (conducted January 30, 2003 through February 2, 2003); see also Newsweek
poll (conducted January 16-17, 2003).
94
See supra note 52-58
95
Id.
96
See 45C Am. Jur. 2d Job Discrimination § 2368; see also AFFIRMATIVE ACTION, EMPI MA-CLE
2-1(considering race-neutral alternatives rather than race-based); see also Richard D. Kahlenberg, A
Better Affirmative Action, THE CENTURY FOUNDATION PRESS, (2004); Rewarding Strivers: Helping Low-
Income Students Succeed in College (THE CENTURY FOUNDATION PRESS, 2010), and America’s
Untapped Resource: Low-Income Students in Higher Education (THE CENTURY FOUNDATION PRESS,
2004).
the evolving national values have changed enough that race-based considerations may not be

needed. In the future, the Court may easily call upon substantive due process arguments to create

a fundamental right that would be in direct conflict with affirmative action plans.

IV. RACE-NEUTRAL ALTERNATIVES SOLUTION TO RACIAL PREFERENCES IN

ADMISSIONS: THE ARGUMENT FOR SOCIOECONOMIC DIVERSITY AND

PERCENTAGE PLANS

It is only a matter of time before the Supreme Court will severely limit or fully end the

ability of universities to use race and ethnicity in admissions and when that time comes, the

impact will be devastating. 97 The majority of colleges and universities that are considered to be

of the upper echelons employ the use of racial or ethnic preferences at the admissions process.

Recently, the Court in Fisher v. University of Texas,98 provided no clear insight on the future of

affirmative action. What will take affirmative action’s place? What are universities likely to do if

the ability to use race-based considerations is a violation of the Fourteenth Amendment equal

protection clause, due process clause, or a violation of Title VI of the Civil Rights Act?

During oral arguments of the Fisher case, Justice Kennedy expressed skepticism about

the claims made by colleges and universities – they cannot create racial and ethnic diversity

except by resorting to explicit racial preferences in admissions. Justice Kennedy said, “[s]o what

you’re saying is that what counts is race above all? . . . You want underprivileged of a certain

97
Grutter v. Bollinger, 539 U.S. at 351 (Justice Thomas, concurring in part and dissenting in part) (“I
agree with the Court's holding that racial discrimination in higher education admissions will be illegal in
25 years.”).
98
Fisher v. University of Texas, 132 S.Ct. 1536 (2012)
race and privileged of a certain race. So that’s race.” 99 Supporters of affirmative action argued

that no workable alternatives existed for creating racial diversity. Like Justice Harry Blackmun’s

opinion in Bakke:

I suspect that it would be impossible to arrange an affirmative action program in a

racially neutral way and have it successful. To ask that this be so is to demand the

impossible. In order to get beyond racism, we must first take account of race. There

is no other way.100

The evidence provided by several major universities in this portion of the paper confirm Justice

Kennedy’s suspicions while diminishing Justice Blackmun’s 1978 Bakke opinion.

A. Diversity Benefits of Race-Neutral Alternatives

Many states of ended the use of race-based considerations in the college admissions

process.101 Some have used socio-economic status as the main controlling factor for creating

diversity in instates of higher learning. 102 Other states such as Washington have not replaced

racial preferences on a statutory level, but their State universities have developed new

admissions processes that are facially neutral alternatives that still provide a diverse student

body.103

99
Oral Argument at 45, Fisher v. University of Texas, 133 S.Ct. 2411 (2013), available at
http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-345.pdf.
100
Bakke v. Regents of the University of California, 438 U.S. 265 at 407.
101
See supra note 52-58
102
“SB 175,” Texas Legislature Online,
http://www.legis.state.tx.us/billlookup/History.aspx?LegSess=81R&Bill=SB175; see also “Bill Analysis:
S.B. 175,”
Texas Legislature Online,
http://www.legis.state.tx.us/tlodocs/81R/analysis/pdf/SB00175F.pdf#navpanes=0.
103
Long, “Affirmative Action and Its Alternatives in Public Universities,” 316; see also Blume, “Policy
Options to Increase Underrepresented Student Enrollments in a Post-Affirmative Action Environment,” 9;
see also “University of Washington Diversity Compact,” October 21, 2000,
http://www.washington.edu/diversity/divpdfs/mccormick221.pdf; see also “Diversity Council,”
University of Washington, http://www.washington.edu/diversity/divcoun/index.shtml; see also
“Freshman Review,” University of Washington Office of Admissions,
 A race-neutral approach can produce racial and ethnic diversity, but it offers greater merit

than just that. For example, percentage plans can open up the doors to students from high schools

that may never have sent students in the past. Eliminating legacy preferences takes away unfair

advantage held by privileged applicants, and appears to do no harm to the university

fundraising.104

In creating race-neutral alternatives to affirmative action, states have for more than a

decade been serving as these “laboratories for democracy.” 105 The evidence presented by this

portion of the paper suggests that it is possible to produce a critical mass of African American

and Latino students in leading universities without resorting to racial preferences. Furthermore,

greater diversity is achieved when race-neutral alternatives are used. This portion of the paper

will examine three of the seven state universities systems using race-neutral plans – Texas,

Washington, and California – where the representation of racially diverse levels exceeded what

the universities had when using racial presences.

1. Texas

The University of Texas’s (Austin) incoming freshman class during the fall of 1996,

using race in the admissions process, was 4.1 percent African American and 14.5 percent

Hispanic.106 Shortly after, UT Austin was temporarily barred from using race by a Fifth Circuit

http://admit.washington.edu/Admission/Freshmen/Review; see also “Writing Section Instructions,”

University of Washington Office of Admissions,
http://admit.washington.edu/Admission/Freshmen/WritingSection.
104
See Richard D. Kahlenberg, Affirmative Action in Higher Education After the Seattle and Louisville
Decisions: Reexamining the Socioeconomic Alternative, Paper Prepared for the American Association for
the Advancement of Science and National Action Council for Minorities in Engineering (Jan. 15, 2008)
available at http://php.aaas.org/
programs/centers/capacity/documents/Kahlenburg_Post-Seattle.doc.
105
Phrase popularized by U.S. Supreme Court Justice Louis Brandies in New State Ice Co. v. Liebmann,
285 U.S. 262 (1932) (holding that due process prevented a state legislature from “arbitrarily” creating
restrictions on new businesses based on the single claim that their markets affected a public use).
106
Brief for Respondents, Fisher v. university of Texas, August 2012 at 6-7 and 10, available at
http://www.utexas.edu/vp/irla/Documents/Brief%20for%20Respondents.pdf
ruling in Hopwood v. Texas.107 In response to Hopwood, Texas set forth an action plan. State

legislators created a program that automatically admitted students in the top 10 percent of every

high-school class.108 The “Top 10 Percent” plan provided the opportunity to students from

disadvantaged schools with lower test scores to be admitted, who otherwise would not have been

considered.109 The University of Texas (Austin) was able to create even higher levels of black

and Latino representation utilizing the “Top 10 Percent plan” and socioeconomic-based

affirmative action than through race-based.110

Additionally, the University of Texas (Austin) created a socioeconomic affirmative

action plan that gave a leg up in admission by examining grades and test scores in the context of

“special circumstances.”111 The statewide application for Texas Universities (ApplyTexas)

looked for socioeconomic factors to consider in several different ways. 112 The ApplyTexas

application asks for family income and household size as well as mother’s and father’s highest

education level. The Apply Texas also takes into account family obligations, for example it asks;

(1) “Do you have family obligations that keep you from participating in extracurricular

activities?” (2) “If you have family obligations, do you: a. have to work to supplement family

107
Hopwood v. State of Texas, 78 F.3d 932 (1996).
108
H.B. 588, Leg. Sess. 75(R) (Tex. 1997) available at
http://www.legis.state.tx.us/tlodocs/75R/billtext/html/HB00588F.htm.
109
Id.
110
U.S. Department of Education, National Center for Education Statistics, Integrated Postsecondary
Education Data System (IPEDS), http://nces.ed.gov/ipeds/datacenter/.
111
112
Application Review, THE UNIVERSITY OF TEXAS AT AUSTIN,
http://bealonghorn.utexas.edu/freshmen/decisions/review (defining what special circumstances are in a
holistic review of an application, which include: socioeconomic status of family, single parent home,
language spoken at home, family responsibilities, overcoming adversity, cultural background, race and
ethnicity. The admissions page also states that “[d]uring holistic review, we consider academic
achievement, personal achievement, and special circumstances.”).
income? b. provide primary care for family members? c. have other family obligations that

prevent participation?”113

2. California

The University of California (UC system), which has been banned from using race since

1996, has employed both a percentage plan and economic affirmative action plan, along with

several other race-neutral approaches.114 Initially, the proportion of blacks and Latinos of

incoming freshman decreased from 18 percent to 15 percent in the first year; but by 2008

representation of the two target minority groups reached 24 percent. The key component in this

change has been the passage of California Proposition 209.

Proposition 209 amended the state constitution which effectively changed the admissions

process for the UC system by prohibiting public schools from considering race, sex, or

ethnicity.115 Although UC Berkeley and UCLA have taken a hit in diversity levels since

Proposition 209 was passed. Prior to Proposition 209, UC Berkeley and UCLA both had

freshman classes that consisted of 23 percent African American and Latino students. 116 In 1998

after Proposition 209 came into effect, that number dropped to roughly 14 percent; however, it

has since recovered to 20 percent. 117

113
Id.
114
Id.; see also Tongshan Chang and Heather Rose, “A Portrait of Underrepresented Minorities at the
University of California, 1994-2008,” Equal Opportunity in Higher Education: The Past and Future of
California’s Proposition 209, ed. Eric Grodsky and Michal Kurlaender (Cambridge, Mass.: HARVARD
EDUCATION PRESS, 2010), 88-89.
115
Id.
116
Id.
117
Id.
3. Washington

Like California, Washington State voters passed Initiative 200, which prevented state

universities from using race in its admissions decisions.118 Initiative 200 prohibited

discrimination or preferential treatment “based on race, sex, color, ethnicity, or national origin in

public employment, education, and contracting.” 119 In response to Initiative 200, the University

of Washington made efforts to create a more comprehensive admissions system that looked at

race-neutral characteristics as a means to enhance diversity. 120 The university’s president,

regents, and administrators created a compact that included specific diversity initiatives the

university would take within six months. 121

As a result of the compact, the University of Washington adopted a holistic review of the

admissions process and considered a number of “Personal Achievements and Characteristics.”122

The University of Washington decided on four ways to demonstrate personal achievement and

characteristics.123 First, a student could establish personal achievement and characteristics by

“demonstrating a commitment to community service and leadership.”124 Second, a student could

show that he or she made efforts of “attaining a college-preparatory education in the face of

118
Washington State Civil Rights Initiative 200, available at
http://www.sos.wa.gov/elections/initiatives/text/i200.pdf.
119
Id.
120
Grant H. Blume, Policy Options to Increase Underrepresented Student Enrollments in a Post-
Affirmative Action Environment: A Case Study of the University of Washington, A research paper
presented at the annual conference of the Association for the Study of Higher Education, Indianapolis,
Indiana, November 19, 2010, 5, http://www.nacacnet.org/issues-
advocacy/MemberAction/Documents/BLUME_ASHE%20Paper.pdf, see also Florangela Davila and
Justin Mayo, I-200 Didn’t Erase Color on State’s College Campuses, SEATTLE TIMES, November 24,
2002, available at
http://community.seattletimes.nwsource.com/archive/?date=20021124&slug=i200uw24m1.
121
THE UNIVERSITY OF WASHINGTON DIVERSITY COMPACT, October 21, 2000, available at
http://www.washington.edu/diversity/divpdfs/mccormick221.pdf.
122
Freshman Review, UNIV. OF WASHINGTON OFFICE OF ADMISSIONS, available at
http://admit.washington.edu/Admission/Freshmen/Review.
123
Id.
124
Id.
significant personal adversity, economic disadvantage, or disability.”125 Third, a student could

“demonstrate[e] cultural awareness or unique perspectives or experiences.”126 Finally, a student

could “demonstrate[e] notable tenacity, insight, originality, or creativity.” 127

After the passage of Initiative 200, the admitted class fell from 2.8 percent Black or

African American students and 3.3% Hispanic students to 2 percent Black or African American

Students and 2.5 percent Hispanic students. 128 Since the introduction of the University of

Washington’s holistic review approach, percentages of racially diverse students in each enrolled

class has steadily increased. 129 In 2010, incoming freshman enrollment consisted of 3 percent

Black or African American students and 6.5 percent Hispanic students. 130

B. Rebutting Criticisms of Economic Affirmative Action and Percentage Plans

Economic based affirmative action is far more popular amongst the American public,

more so than race-based preferences; it still faces legal challenges and objections. One of the

main arguments against a race-neutral alternative is that it denies the ongoing significance of

racial discrimination and it elevates unprepared students into competitive universities where they

will eventually fail. The University of North Carolina has stated in their amicus brief in Fisher v.

University of Texas, that admitting students in the top 10 percent of high schools in North

Carolina would result in serious decline in academic quality, that many of the new automatic

admits would find themselves lost amid a faster pace Chapel Hill – students would flock to

125
Id.
126
Id.
127
Id.
128
U.S. DEP’T OF EDUC., NATIONAL CENTER FOR EDUC. STATISTICS, Integrated Postsecondary
Education Data Systems (IPEDS), available at http://nces.ed.gov/ipeds/datacenter/.
129
Id.
130
Id.
remedial courses to overcome their relatively weak high school education; resulting in an

increase of challenges to reach graduation. 131

Such claims laid out by the University of North Carolina are unfounded criticism.

Research from the Top 10 Percent plan on students in Texas suggests socioeconomic based

preferences have provided an increase of four percent in graduation rates when the 38 percent of

the student body makes up the two lower quartiles of the socioeconomic scale.132 Additionally,

the Top 10 Percent plan has increased the diversity make up from 10 percent to 38 percent,

where students admitted under this plan are outperforming and graduating at a higher rate than a

strictly race-based affirmative action plan. 133

Further research indicates that students in the bottom income quartile could increase from

10–13 percent to include as much as 30 percent (within the bottom half of the income spectrum)

without losing academic quality (measured by having at least 1420 SAT score). 134 An additional

study found that only 44 percent of “high performing” (top quartile in SAT scores), “low-

income” students make it to college.135 Another study confirmed these findings and stated that

“our lowest performing affluent students go to college at a higher rate than the highest

131
Brief of Amicus Curiae the University of North Carolina at Chapel Hill Supporting Respondents,
Fisher v. University of Texas, 35–36, available at
http://www.utexas.edu/vp/irla/Documents/ACR%20The%20University%20of%20North%20Carolina%20
at%20Chapel%20Hill.pdf.
132
Carnevale and Rose, Socioeconomic Status, Race/Ethnicity, and Selective College Enrollment, 149.
133
Gordon C. Winston and Catharine B. Hill, Access to the Most Selective Private Colleges by High-
Ability, Low-Income Students: Are They Out There?, WILLIAMS PROJECT ON THE ECONOMICS OF HIGHER
EDUCATION, October 2005; See also See also David Glenn, Economists Describe a Missing Pool of Low-
Income College Applicants, CHRONICLE OF HIGHER EDUCATION, January 5, 2009.
134
Gordon C. Winston and Catherine B. Hill, Access to the Most Selective Private Colleges by High-
Ability, Low-Income Students: Are They Out There?, WILLIAMS PROJECT ON THE ECONOMICS OF HIGHER
EDUCATION, (Oct. 2005).
135
Joshua S. Wyner, John M. Bridgeland, and John J. Dilulio, Jr., Acheivement Trap: How America is
Failing Millions of High-Achieving Students from Lower-Income Families,10, JACK KENT COOKE
FOUNDATION AND CIVIC ENTERPRISES, 2007; Id. at Appendix B, 41-42.
performing youth from the least advantaged families.”136 Drawing from the research, it can be

concluded that there are enough students from low-income families, with parents at low levels of

education, who are prepared for college and attaining a bachelor’s degree, even at the most

prestigious and selective schools. 137

A second criticism for socioeconomic based affirmative action is that there is a real

percentage increase of the number of undergraduates receiving Pell Grants. For example, the

University of Texas (Austin), for years prior to Hopwood, averaged nearly 17 percent of its

undergraduates were recipients of Pell Grants. 138 However, after the Top 10 Percent plan went

into place, there was an initial drop down to 15 percent of undergraduates as recipients of Pell

Grants.139 The percentage of undergraduates receiving Pell Grants seemed to slowly rise and

level off just under 20 percent until 2008 where it jumped to 27%. 140

While critics may argue that socioeconomic affirmative action would be taxing on the

American public because of the increase in percentage of undergraduate students receiving Pell

Grants, it is truly unknown. This jump occurred nationwide at all major universities, which

indicates that it was a national trend effected by other outside factors such as the economic crisis

and housing bust of 2008, not just state legislation or school admissions policies giving

preferential treatment for students coming from low-income based homes.141

136
Anthony P. Carnevale and Jeff Strohl, How Increasing College Access is Increasing Inequality, and
What to Do about it, 112, NEW YORK: CENTURY FOUNDATION PRESS, 2010.
137
See id.; see also Anthony P. Carnevale and Stephen J. Rose, Socioeconomic Status, Race/Ethnicity,
and Selective College Admissions, 111-15, NEW YORK: CENTURY FOUNDATION PRESS, 2004; see also
Wyner supra note 121 at 10; see also Winston supra note 120.
138
Data on Pell Grant recipients, U.S. DEP’T OF EDUC., available at
http://www2.ed.gov/finaid/prof/resources/data/pell-institution.html;
139
Id.
140
Id.; Data on Pell Grant recipients, U.S. DEP’T OF EDUC., available at
http://www2.ed.gov/finaid/prof/resources/data/pell-institution.html.
141
Aggregated national Pell Grant Data, Federal Pell Grant Program End-of-Year Report, U.S. DEP’T
OF EDUC., OFFICE OF POSTSECONDARY EDUC., (2011) available at
http://www2.ed.gov/finaid/prof/resources/data/pell-2010-11/pell-eoy-2010-11.pdf.
 CONCLUSION

Racial preferences will remain unpopular as long as the idea of race is a determinative

factor in “who gets ahead” in life. Furthermore, states and universities as mentioned in Part IV

above, have begun to debunk the arguments for race-based affirmative that Justice Powell made

in Bakke by creating a diverse student body through socioeconomic-based affirmative action. 142

Universities using socioeconomic-based preferential treatment in admissions decisions will find

truly diverse individuals rather than individuals from racial minority groups that come from

either the middle or upper class. 143

The recent Fisher decision has done little more in providing colleges, universities, and

graduate schools with another example of an impermissible component in an admissions

program. Like the decisions in Grutter and Bakke, the Fisher decision will not encourage schools

to rethink merit-based admissions decisions that lead to race-based admissions policies. Fisher

becomes even more irrelevant because colleges, universities, and graduate schools have begun to

implement a more holistic approach to their admissions policies. Universities are finding ways to

hold onto rankings, high GPAs, and standardized test scores while also increasing student body

diversity by implementing socioeconomic-based affirmative action. The desire to create optimal

incoming freshman classes based off non-race-based affirmative action is the primary reason for

142
See Bakke, 438 U.S. 265 at 316 (stating that it is impossible to create diversity without the use of race-
based preferential treatment in the admissions process).
143
Derek Bok and William Bowen, The Shape of the River, 341, PRINCETON UNIV. PRESS (1998) (stating
that 86 percent of African Americans at selective colleges were either middle or upper class. At Ivy
League institutions, 41 percent of black freshmen were immigrants and were from a socioeconomic class
advantaged more than non-immigrant blacks.); see also Daivid Leonhardt, Top Colleges, Largely For the
Elite, NEW YORK TIMES, May 25, 2011, B1 (stating that at Harvard, the majority of black undergraduates
(two-thirds) were West Indian and African immigrants or their children, or a lesser extent, children of
biracial couples).
the growing irrelevance of Fisher and current affirmative action jurisprudence in higher

education.