Diversity in the Halls of Academia: Bye-Bye Bakke?

United States Supreme Court has never explicitly held that in an academic setting to enable an affirmative action program is a sufficiently compelling to survive strict scrutiny3 constitutional review.4 last case that visited the issue was Regents of the University of California v. Bakke,5 and though Justice Powell applied strict scrutiny in his keystone opinion, he found the attainment of student to indeed be a compelling interest.6 No other Justice, however, joined the opinion.7 Since Bakke, the diversity as a compelling interest issue has attracted significant attention and has been the subject of many legal battles. In fact, [fln the past six months, in four different cases, two circuit courts and two district courts have held either that an educational institution's desire for a diverse student body can never be a compelling justification for race-based preferences in admissions - or that it can be.8 this central issue has been much mooted, the Court has not yet granted certiorari to resolve it.9 time is ripe for the Court to rule unequivocally as to whether the desire to attain student IMAGE FORMULA2 through a targeted admissions policy is a compelling enough to survive strict scrutiny.10 This Article seeks to describe the problem arising from the division of the Court in Bakke. It will also address the cases that have since divided on the question, and assess the possible outcome should the Supreme Court finally grant certiorari to a case raising the issue. Problem with Bakke The Bakke case gave the Supreme Court its first opportunity to take an authoritative stance on the concept of affirmative action.11 However, almost 25 years later, it remains unclear whether it did. In Bakke,12 a Caucasian male who was denied admission to a medical school filed a cause of action, alleging that the school's admission policy of reserving 16 out of the 100 seats for disadvantaged minority students was unconstitutional and denied him equal protection under the law.13 Supreme Court ultimately held the policy to be unconstitutional, as the Caucasian student was completely denied the opportunity to compete for those 16 seats due to the quota system in place, thereby disregard[ing his] individual rights as guaranteed by the Fourteenth Amendment.14 However, prior to reaching the holding, Justice Powell, who delivered the judgment for the Court, considered each of the school's four justifications for the admissions policy in turn, one being its intent to achieve a diverse student body.15 He wrote that in an academic setting clearly is a constitutionally permissible goal for an institution of higher education. 16 Justice Powell delivered the Court's judgment, his opinion failed to amass a clear majority as to the issue of whether is a sufficiently compelling that will survive strict scrutiny review.17 That has led to several uncertainties within the legal community: Since Justice Powell did not accumulate a majority for his opinion in Bakke, is it binding on the issue? Did the other Justices' silence on the issue imply agreement or disIMAGE FORMULA5 agreement?18 Is there a controlling rationale on the issue?,O[W]hat is one to make of that fragmented decision of the Supreme Court; what guidance or principles did it convey to an anxious nation, and to even more anxious educators?21 Essentially, does Bakke remain good law?22 Courts Divided Since Bakke Although . . . Bakke is the law of the land when it comes to race-based admissions in universities, the law articulated is not particularly helpful and not entirely clear... Bakke was decided by an extremely fragmented Court.23 Since Bakke, the Supreme Court has not granted certiorari to any case involving race-based admissions programs in a higher education institution. …