Of Doubt and Diversity: The Future of Affirmative Action in Higher Education

The jurisprudence of affirmative action in higher education has been plagued by ambivalence and ambiguity. In 1978, the United States Supreme Court tried to quell the controversy over race-conscious admissions in the Bakke case. The Justices’ decision permitted institutions of higher education to continue their admissions practices, but the fragmented opinions hardly quieted critics of affirmative action. In the 1980s and 1990s, the debate only intensified, and lower federal courts began to reach strikingly different conclusions about the constitutionality of considering race and ethnicity to achieve diversity in the student body. In 2003, the Court finally returned to these issues in lawsuits challenging undergraduate and law school admissions at the University of Michigan. When the Court agreed to hear the cases, friends and foes of affirmative action alike hoped for a decisive victory. Yet, neither side achieved complete vindication. Instead, civil rights advocates were buoyed by the Court’s conclusion that diversity can be a compelling interest, while proponents of colorblindness emphasized the requirements for narrow tailoring of race-conscious practices. Despite the Michigan decisions, disputes over affirmative action in higher education continue largely unabated. The profound challenge that remains is to convert ambivalence and ambiguity into a shared aspiration for racial justice. Neither bright-line rules nor iconic cases, standing alone, will be up to this task. Instead, the quest must be rooted in a responsive law, one that links concerns about equality to the fundamental precepts of liberty, dignity, and membership.