Regents of the University of California v. Bakke vs. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
A side-by-side comparison of two landmark constitutional law cases
Regents of the University of California v. Bakke
438 U.S. 265 (1978) (1978)
Holding
In a divided decision with no single majority opinion, the Court struck down the Davis quota system but held that race could be considered as a factor in admissions. Four justices (Stevens, Stewart, Rehnquist, Burger) would have invalidated the program on statutory grounds alone. Four justices (Brennan, White, Marshall, Blackmun) would have upheld it under intermediate scrutiny. Justice Powell, casting the deciding vote, held that fixed racial quotas violated the Equal Protection Clause but that the use of race as one factor in a holistic admissions process served the compelling interest of student body diversity.
Doctrine Established
Diversity as a Compelling Interest / Prohibition on Racial Quotas
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
600 U.S. 181 (2023) (2023)
Holding
The Court held 6-3 that both programs violated the Equal Protection Clause. Chief Justice Roberts's majority opinion held that the programs lacked sufficiently focused and measurable objectives to warrant racial classifications, used race as a negative for some applicants, involved racial stereotyping, and lacked a meaningful endpoint. The Court did not formally overrule Grutter but held that the Harvard and UNC programs were inconsistent with the Equal Protection Clause.
Doctrine Established
Prohibition on Race-Conscious University Admissions
Comparison Analysis
Regents of the University of California v. Bakke (1978) and Students for Fair Admissions v. Harvard (2023) bookend the era of constitutionally permissible race-conscious university admissions. Bakke, through Justice Powell's controlling opinion, struck down rigid racial quotas but held that race could be considered as one factor among many in a holistic admissions process to achieve the compelling interest of educational diversity. SFFA effectively ended this practice, holding that Harvard's and UNC's race-conscious admissions programs violated the Equal Protection Clause because they lacked sufficiently focused and measurable objectives, used race as a negative for applicants who were not underrepresented minorities, and operated without a meaningful endpoint.
The doctrinal journey between these cases passed through Grutter v. Bollinger (2003), which formally adopted Justice Powell's Bakke framework and held that the educational benefits of diversity constituted a compelling governmental interest. SFFA departed from Grutter's reasoning, with Chief Justice Roberts finding that the admissions programs failed strict scrutiny because their diversity goals were not sufficiently concrete to permit meaningful judicial review. The majority held that using race to achieve an amorphous goal of educational diversity was indistinguishable from racial balancing, which the Court has consistently prohibited.
The methodological tension between these cases mirrors the broader debate between those who view the Equal Protection Clause as requiring strict colorblindness and those who believe it permits race-conscious measures to remedy historical discrimination and achieve integrated institutions. Bakke attempted a middle path, while SFFA moved decisively toward the colorblindness position. Students must understand that SFFA did not overrule Bakke or Grutter in name, but its reasoning is difficult to reconcile with the continued viability of race as a factor in any admissions decision.
Similarities
- Both apply strict scrutiny to race-conscious university admissions programs under the Equal Protection Clause
- Both involve challenges to selective university admissions processes that considered applicants' race
- Both grapple with the tension between the ideal of colorblindness and the goal of racial diversity in education
- Both generated multiple opinions reflecting deep judicial disagreement about the proper role of race in public life
Differences
- Bakke permitted race as one factor in holistic admissions, while SFFA effectively prohibited all race-conscious admissions programs
- Bakke's controlling opinion (Powell) stood alone without a majority, while SFFA had a clear 6-3 majority opinion
- Bakke only struck down the rigid quota system while preserving flexibility for holistic review; SFFA found the holistic programs themselves unconstitutional
- SFFA required that any use of race serve measurable, concrete objectives with an endpoint, a requirement not present in Bakke or Grutter
- Bakke was decided when affirmative action was gaining institutional acceptance; SFFA reflects a Court majority skeptical of all racial classifications regardless of purpose
Why This Comparison Matters
Affirmative action in higher education is a perennial exam topic. After SFFA, students must analyze whether any race-conscious admissions program can survive strict scrutiny and understand the practical workarounds universities might employ. Exam questions may ask students to evaluate a hypothetical admissions program that considers race indirectly (through essays about overcoming discrimination, for example) and determine whether SFFA's reasoning reaches those practices. Students should also be prepared to discuss how SFFA treats precedent -- whether it effectively overrules Grutter without saying so.
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