Diversity in University Admissions Decisions: The Continued Support of Bakke

By Daniel, Philip T. K. | Journal of Law and Education, January 2003 | Go to article overview

Diversity in University Admissions Decisions: The Continued Support of Bakke


Daniel, Philip T. K., Journal of Law and Education


I. INTRODUCTION

The case Regents of the University of California v. Bakke1 represents a plurality decision, authored by former Supreme Court Justice Lewis Powell, stating that racial diversity in higher education institutions may serve as a compelling government interest for racially conscious admissions, even when no past discrimination has been demonstrated, as long as the exercise is narrowly tailored and does not denigrate the rights of white students. The case involved the grant of admission in the medical school at the University of California at Davis where sixteen of one hundred spaces were set aside specifically for students of color. Eight Justices of the Court split evenly over whether "race" could ever be used as a criterion for college admissions. Although ruling against the University, Powell broke the tie by declaring that racially-based affirmative action is permissible and is constitutionally protected by the First Amendment right of academic freedom.2 This decision has been cited almost 4100 times, 3200 of those in legal periodicals, according to the latest iteration of WESTLAW. Like the aforementioned members of the Court, legal researchers have fallen on either side of the issue and some of the published compositions, like the subject of this critique, have offered formulaic interpretations that serve as just another panegyric to the anti-affirmative action position championed by the United States Court of Appeals for the Fifth Circuit in the case of Hopwood v. Texas.3

On the one hand, it appears the author of Diversity in the Halls of Academia: Bye-bye Bakke?4 makes an avid attempt at being even handed; in this regard the research falls short of the full analysis necessary to give the reader a complete picture of the complexities involved in this all-important societal issue. On the other hand, the article appears to be a rendition of the arguments made in Hopwood and ones that can be correlatively found in similar articles that are either inconclusively researched or are end-means oriented.5 In any case, the structural pattern of the arguments is indistinguishable from that formerly put forward in Hopwood. It articulates: 1) Hopwood's problem with the plurality decision in Bakke; 2) an analysis of Supreme Court decisions involving raceconscious affirmative action outside of higher education; 3) the conflict within the lower courts based on the absence of bright line clarity at the Supreme Court level; and 4) a prediction of the Supreme Court position on higher education admissions decisions so as to settle the lower court conflict. The rest of the current article will follow this convention arguing that Bakke was correctly decided and that the United States Supreme Court will have to strain to overcome its own judgment in this area of the law.

II. HOPWOOD ON BAKKE

In Hopwood v. Texas,6 the United States Court of Appeals for the Fifth Circuit challenged the decision in Bakke, claiming that the opinion of Justice Lewis Powell represented no binding precedent on the issue of affirmative action in higher education.7 The plurality Supreme Court decision had declared that university affirmative action admissions could be constitutional if race was used as "a" factor as opposed to "the" factor; hence, as stated above, diversity could be a compelling government interest if used within the context of the university' s pursuit of academic freedom. Hopwood concerned the suit of four white students against the admissions program at the University of Texas at Austin College of Law.8 The university had established a quota-based system much like the one declared unconstitutional in the Bakke decision. The Fifth Circuit majority, however, declined to follow the Supreme Court plurality decision rendered by Justice Powell claiming that his position was joined by no other Justice.9 The lower court stated that "any consideration of race or ethnicity by the law school for the purpose of achieving a diverse student body is not a compelling interest under the Fourteenth Amendment. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Diversity in University Admissions Decisions: The Continued Support of Bakke
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.