Would Regents of the University of California v. Bakke Be Decided the Same Way Today?

In a fractured decision with no majority opinion, Justice Powell's controlling opinion held that racial quotas in university admissions violate the Equal Protection Clause, but that race may be considered as one factor among many in a holistic admissions process. Powell endorsed the view that diversity in higher education constitutes a compelling governmental interest sufficient to justify the limited consideration of race, citing Harvard's admissions program as a model. The medical school's special admissions program reserving 16 seats for minority applicants was struck down.

Bakke's legacy has been effectively dismantled by the Supreme Court's decision in Students for Fair Admissions v. Harvard (2023), which held that race-conscious admissions programs at Harvard and the University of North Carolina violate the Equal Protection Clause. Chief Justice Roberts's majority opinion concluded that the educational benefits of diversity, while real, cannot justify racial classifications in admissions because such programs lack sufficiently focused and measurable objectives, inevitably use race as a stereotype, and have no logical endpoint.

The SFFA decision did not formally overrule Bakke or Grutter v. Bollinger (2003), which had reaffirmed Bakke's diversity rationale. Instead, it held that the specific admissions programs at Harvard and UNC failed to satisfy strict scrutiny. However, the practical effect of SFFA has been to end race-conscious admissions at selective universities across the country. Institutions have scrambled to develop race-neutral alternatives, including socioeconomic preferences, geographic diversity programs, and revised essay prompts that allow applicants to discuss how their racial identity has shaped their experiences.

The political and legal landscape around affirmative action has shifted dramatically since 1978. Public opinion has become more skeptical of race-conscious policies, and several states had already banned affirmative action through ballot initiatives and legislation before the SFFA decision. The 2023 decision brought the rest of the country in line with these states and marked the end of the Bakke-Grutter framework that had governed university admissions for 45 years.

Bakke's core holding—that race may be considered as a factor in university admissions—has effectively been overturned by the Students for Fair Admissions decision. While the SFFA majority did not formally overrule Bakke, it imposed requirements on race-conscious admissions programs that no existing program could satisfy, and the clear import of the decision is that universities may no longer consider an applicant's race in admissions decisions.

The trajectory from Bakke to SFFA reveals the gradual erosion of support for race-conscious admissions over five decades. Bakke itself was fractured, with no majority opinion supporting the diversity rationale. Grutter v. Bollinger (2003) provided a 5-4 endorsement of diversity-based affirmative action, but Justice O'Connor's majority opinion famously predicted that racial preferences would no longer be necessary in 25 years. The composition of the Court shifted significantly in the intervening decades, and by 2023, six justices were prepared to effectively end the practice.

The doctrinal basis for overturning Bakke rests on the application of strict scrutiny to racial classifications. The SFFA majority concluded that race-conscious admissions programs, despite their diversity rationale, operate as racial balancing, use race as a stereotype, and lack the measurable objectives and logical endpoint that strict scrutiny demands. This analysis reflects a particular vision of the Equal Protection Clause as requiring formal colorblindness rather than permitting race-conscious measures to address historical inequality.

The debate about affirmative action will continue in new forms. Universities are experimenting with race-neutral alternatives, applicants may discuss their racial identity in personal statements, and the effectiveness of these alternatives in maintaining diversity will be closely monitored. Whether the SFFA framework represents a permanent settlement or a new chapter in an ongoing constitutional conversation remains to be seen.

The scholarly debate about Bakke and affirmative action encompasses constitutional theory, educational policy, and racial justice. Defenders of race-conscious admissions, including Lani Guinier and Gerald Torres, argue that diversity in higher education produces concrete educational benefits and that race-neutral alternatives are insufficient to overcome the persistent effects of historical discrimination. They contend that the colorblind reading of the Equal Protection Clause ignores the Amendment's purpose of addressing racial subordination and effectively freezes existing racial inequality in place.

Critics of affirmative action, including Richard Sander and Stuart Taylor, have raised empirical objections, arguing that racial preferences 'mismatch' students with institutions where they are less likely to succeed and may ultimately harm the intended beneficiaries. On the theoretical level, scholars like John McGinnis have argued that the original meaning of the Equal Protection Clause requires colorblind treatment by the government and that Bakke represented judicial policymaking rather than constitutional interpretation. The SFFA decision has not ended this debate but has shifted it to new terrain, including the constitutionality of race-neutral alternatives and the legal significance of considering race through personal narratives rather than categorical classifications.

• Students for Fair Admissions v. Harvard (2023)
• Grutter v. Bollinger (2003)
• Gratz v. Bollinger (2003)
• Fisher v. University of Texas (2016)
• Schuette v. Coalition to Defend Affirmative Action (2014)