Affirmative Action Under the Fourteenth Amendment
"Affirmative action" refers to policies that promote diversity by offering opportunities to people from historically disadvantaged groups. For many years, many public colleges and universities used race as a factor in admissions decisions as part of affirmative action. The Supreme Court upheld this practice for decades until it overturned race-conscious admissions policies in 2023, saying they violated the Fourteenth Amendment.
The Fourteenth Amendment to the United States Constitution took effect on July 9, 1868. Just a few years earlier, the Emancipation Proclamation had ended slavery, and the nation was going through major changes known as "Reconstruction."
Three important constitutional amendments passed during this time:
- The Thirteenth Amendment officially abolished slavery.
- The Fourteenth Amendment granted citizenship to everyone born or naturalized in the United States and extended due process protections to actions by state governments. It also guarantees “equal protection under the law.”
- The Fifteenth Amendment promised that no one would be denied the right to vote based on “race, color, or previous condition of servitude.”
The Reconstruction Amendments made great strides toward equality for all people living in the United States. But, of course, there was more work to do. Ongoing efforts to correct the nation’s historical injustices present complex legal challenges. For example, how do programs that aim to help historically disadvantaged groups square with the Fourteenth Amendment?
This article discusses the equal protection clause of the Fourteenth Amendment and its relationship to affirmative action policies. Later sections summarize important Supreme Court decisions on affirmative action, including Students for Fair Admissions v. Harvard College (2023).
The Equal Protection Clause
The equal protection clause of the Fourteenth Amendment states:
“No state shall…deny to any person within its jurisdiction the equal protection of the laws.”
Equal protection generally means that state laws must protect and preserve everyone’s fundamental rights equally. It originally addressed racial discrimination against Black Americans. But the Supreme Court has identified other “suspect classifications,” including gender and immigration status.
However, the Supreme Court views different protected classes differently. Laws that discriminate based on race or national origin must meet the highest standard of court review — strict scrutiny. This means the law must further a “compelling government interest” and be narrowly tailored to achieve that interest. The Court usually strikes down government actions evaluated under strict scrutiny.
In gender and sex discrimination cases, the Court uses “intermediate scrutiny.” This means a law or policy must further an “important” government interest.
Most other equal protection claims are evaluated using the “rational basis” test. This is the easiest bar for the government to clear. If a government action is “rationally related” to a “legitimate” government interest, the Court will generally allow it to stand.
The Court has also extended the equal protection clause to actions by the federal government via the Fifth Amendment.
What Is Affirmative Action?
Affirmative action is the practice of giving preferential treatment to members of historically disadvantaged groups. A common example is an institution of higher education that considers an applicant’s race when making admissions decisions.
For many years, public colleges and universities made concerted efforts to bring in applicants from varied backgrounds. Groups that historically were kept out of higher education, such as women and people of color, were given priority.
Affirmative action policies are also common in the employment space. Many companies consider racial diversity as an important factor in hiring.
The concept of affirmative action dates back to the 1940s, when President Franklin D. Roosevelt issued Executive Order 8802. The order required defense contractors "to provide for the full and equitable participation of all workers in defense industries, without discrimination"
But the phrase “affirmative action” first appeared in an executive order issued by President John F. Kennedy in 1961. This order required government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.”
The Civil Rights Act of 1964 provided additional civil rights protection. Title VI of the Civil Rights Act prohibits discrimination based on race, color, or national origin in “any program or activity receiving Federal financial assistance.” Virtually all public education settings fall under this category.
President Lyndon B. Johnson, who signed the Act into law, saw affirmative action as a way to address the historical injustices faced by African Americans and other marginalized groups.
In the years that followed, affirmative action became increasingly controversial. Critics argued that giving preferential treatment based on race or ethnicity was unfair. Supporters countered that affirmative action was necessary to redress past discrimination and segregation and to promote diversity in the workplace and higher education.
Affirmative Action Challenges
Some argue that because the Fourteenth Amendment guarantees "equal protection under the law," no government program can give one person or group an advantage over others.
Others point to the underlying goal of the Fourteenth Amendment — eliminating oppression — as a justification for affirmative action programs. The Supreme Court upheld this idea in several cases, including Adarand Constructors v. Pena and Grutter v. Bollinger.
In Fisher v. University of Texas at Austin, the Supreme Court held that racial and ethnic preferences in college and university admissions policies must meet the "strict scrutiny" standard. This means the policies must be narrowly tailored to achieve a compelling government interest. Usually, the "interest" in these cases is diversity.
However, on June 29, 2023, the U.S. Supreme Court decided two pivotal cases related to affirmative action. In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the court overturned decades of precedent and ruled that race-based admissions decisions are no longer appropriate in higher education settings.
The opinion also addressed a similar case, Students for Fair Admissions, Inc. v. University of North Carolina. In short, the 6-2 majority held that achieving educational diversity is too vague to qualify as a compelling government interest. Therefore, the Court found that using race as a factor in college admissions decisions is unconstitutional.
We discuss the Harvard decision and other important affirmative action cases below.
Supreme Court Decisions on Affirmative Action
Over the course of nearly 50 years, the Supreme Court refined its approach to equal protection challenges brought against affirmative action policies. Below, we outline the Court’s analysis in each of these cases.
University of California Regents v. Bakke
The U.S. Supreme Court first addressed affirmative action in the 1978 case Regents of the University of California v. Bakke. Allan Bakke, a white applicant to the University of California Davis Medical School, claimed that he had been unfairly denied enrollment in favor of less qualified minority candidates.
The U.S. Supreme Court struck down the school’s use of racial quotas. However, it upheld the consideration of race in college admissions decisions to achieve a diverse student body.
However, the opinion also affirmed the California Supreme Court’s decision to order Bakke’s admission to the school.
The divisiveness of this case is evident from the six separate opinions it spawned. Justices Brennan, White, Marshall, and Blackmun, who concurred in part and dissented in part, stated that the school’s special admissions program was not unconstitutional.
Fullilove v. Klutznick
Two years later, the U.S. Supreme Court again addressed affirmative action in Fullilove v. Klutznick. This case involved a challenge to a provision of the Public Works Employment Act of 1977. The law required that 10% of federal funding for certain public works projects be set aside for businesses owned by "minority group members."
The plaintiffs argued that the provision violated the Fifth Amendment’s due process clause as well as the equal protection clause
In a 5-4 decision authored by Justice Burger, the U.S. Supreme Court upheld the provision’s constitutionality. The majority held that the government had a compelling interest in remedying past discrimination against minority groups. And the provision was a permissible way to pursue that interest.
Mississippi University for Women v. Hogan
Decided in 1982, Mississippi University for Women v. Hogan questioned whether a publicly funded women’s college could exclude men from its nursing school admissions. The Supreme Court held that excluding men from undergraduate admissions violated the 14th Amendment.
The school argued that its goal was to provide a "unique educational experience" for women. And that excluding men was necessary to remedy past discrimination against women.
Justice Sandra Day O’Connor, the first female Supreme Court Justice, authored the majority opinion. The majority reasoned that excluding men from the nursing program at Mississippi University for Women was not "substantially related" to achieving its goals.
The Supreme Court rejected the argument that the policy was necessary to remedy past discrimination against women. Instead, the court found the policy actually perpetuated the stereotype that nursing was a "woman’s job."
This case is heavily cited in cases involving affirmative action policies. It established that any use of race or sex as a criterion for admission or hiring must be narrowly tailored and serve a compelling governmental interest.
Wygant v. Jackson Board of Education
Affirmative action was addressed again in the landmark case Wygant v. Jackson Board of Education (1986). This case challenged a policy requiring layoffs of teachers to be made based on seniority, except where doing so would result in a disproportionate impact on minority teachers. The U.S. Supreme Court held that the policy violated the 14th Amendment’s equal protection clause.
In the majority opinion, Justice Brennan wrote that the policy was unconstitutional because it employed a racial classification that did not serve a compelling governmental interest. The Supreme Court rejected the argument that the policy was necessary to remedy past discrimination.
This case established that racial classifications must be closely scrutinized to ensure that they are necessary to remedy past discrimination and are narrowly tailored to achieve that goal.
United States v. Paradise
In 1987, United States v. Paradise challenged a court-ordered affirmative action plan for the hiring and promotion of Black police officers in Birmingham, Alabama. The District Court found that for almost four decades, the Alabama Department of Public Safety had systematically excluded African Americans from employment as state troopers in violation of the Fourteenth Amendment. As a result, the court issued an order imposing a hiring quota.
The Supreme Court held that the plan was constitutional because it was narrowly tailored to remedy the effects of past discrimination against Black police officers. The plan was a permissible form of affirmative action because it was temporary and limited in scope.
Adarand Constructors, Inc. v. Pena
Adarand Constructors, Inc. v. Pena was a significant 1995 decision involving a challenge to a federal program that gave contractors a financial incentive to hire minority-owned subcontractors.
The U.S. Supreme Court held that the program was subject to strict scrutiny and remanded the case to the lower court to determine whether the program was narrowly tailored to serve a compelling governmental interest.
In the majority opinion, Justice O’Connor wrote that all racial classifications by the government must be subject to strict scrutiny, which requires that the government show:
- A compelling interest in the classification, and
- That the classification is narrowly tailored to achieve that interest.
The U.S. Supreme Court noted that the programs that employ race-based criteria must be evaluated carefully to ensure that they do not discriminate against non-minority individuals, that are necessary to remedy past discrimination.
Grutter v. Bollinger
The U.S. Supreme Court addressed affirmative action again in Grutter v. Bollinger (2003). In this case, the Court upheld the use of race as a factor in admissions decisions at the University of Michigan Law School. Again on the grounds of promoting diversity.
However, the U.S. Supreme Court also made clear that affirmative action programs must be narrowly tailored and cannot use quotas or set aside a certain number of seats.
The Court also indicated that it might not uphold affirmative action policies forever. Justice Sandra Day O’Connor wrote for the majority:
"[R]ace-conscious admissions policies must be limited in time … The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
Fisher v. University of Texas at Austin
In Fisher v. University of Texas at Austin (2013), Abigail Fisher, a white applicant to the University of Texas, challenged the school’s use of race as a factor in admissions decisions.
The U.S. Supreme Court held that the school’s program was unconstitutional but emphasized that affirmative action programs must be subject to strict scrutiny and continually evaluated for their effectiveness.
Students for Fair Admissions v. President and Fellows of Harvard College
Students for Fair Admissions v. Harvard College alleged that Harvard College discriminated against Asian applicants in its school admissions process. The lawsuit was filed in 2014 by Students for Fair Admissions (SFFA), a nonprofit membership organization that opposes affirmative action policies in undergraduate admissions.
SFFA alleged that Harvard intentionally discriminated against Asian applicants by holding them to a higher standard than other minority student applicants. Harvard denied the allegations. Harvard argued that it does not discriminate against any particular racial or ethnic group and seeks to create a diverse student body.
SFFA also accused the University of North Carolina (UNC) of using racial discrimination in their admissions processes. The lawsuit argued that affirmative action policies gave an unfair advantage to Black and Hispanic applicants over white and Asian applicants.
Both schools used a screening system that scored applicants in different categories, such as:
- Academic
- Extracurricular
- Athletic
- School support
- Personal
- Overall
At Harvard, race was not considered as part of the “personal” category. However, admissions officers could consider an applicant’s race when evaluating the “overall” category.
A federal judge ruled in Harvard’s favor in 2019, finding that the school’s admissions process was constitutional and did not discriminate against Asian-American applicants. SFFA appealed the decision in November 2020, and the First Circuit Court of Appeals upheld the lower court’s ruling.
The Supreme Court took up both cases in its 2022-2023 term.
In a 6-2 decision written by Chief Justice John Roberts, the Supreme Court held that using race as a factor in college admissions violates the equal protection clause.
The majority acknowledged that the equal protection clause protects students from discrimination based on race. But it also prohibits people from being “rewarded” because of their race. In their view, each student “must be treated based on his or her experiences as an individual — not on the basis of race.”
Justice Sonia Sotomayor dissented, joined by Justices Elena Kagan and Ketanji Brown Jackson. Justice Jackson recused herself from the Harvard decision because she is a former member of Harvard’s board of overseers. However, she filed a separate dissent in the UNC case.
The dissenting justices argued that the majority gave no real reasoning for going against the principle of stare decisis and overturning 45 years of precedent. Moreover, they argued, the country has not yet reached a state of equality to make affirmative action unnecessary.
The decision has already upended college admissions processes around the country. However, its impact on diversity in higher education likely won’t be clear for several years.
Some schools, such as the University of Texas at Austin, automatically admit the top graduates from each high school in the state. These policies can help increase a school’s racial and socioeconomic diversity without affirmative action. However, a 2020 study of schools that banned affirmative action before the Harvard decision found that alternative policies were not able to fully replace race-conscious admissions policies.
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