Does the Constitution permit government officials to discriminate on the basis of race? Courts first reviewed the question more than 100 years ago, and it has been at the heart of the racial admissions cases. The answer is yes, but— meaning the Constitution allows discrimination by government but only on rare occasions. The courts have said that classifying by race—that is, sorting people by race—is “presumptively impermissible.” The courts have also made clear that racial classifications are subject to “strict scrutiny,” the most stringent standard of constitutional review. To satisfy strict scrutiny, a racial classification must be “narrowly tailored” to achieve “a compelling government interest.”
According to law professor Stephen A. Siegel, narrow tailoring had by 1940 become “the oldest branch” of strict scrutiny and “a prominent part” of the Supreme Court’s First Amendment jurisprudence. It was a means of examining the government’s “precision of regulation,” as the Court said in a 1958 speech case. As for strict scrutiny and the compelling state interest test, Siegel locates the origins of both in litigation in the late 1950s and early 1960s over First Amendment freedoms—speech, religion, and association, the idea being that government needs a compelling interest to justify infringing on constitutional rights, that is, to discriminate on the basis of race.
Siegel quotes Justice Brennan from his opinion for the Court in a 1965 free exercise of religion case: “We must next consider whether some compelling state interest . . . justified the substantial infringement of appellant’s First Amendment right. It is basic that no showing of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, “[only] the gravest abuses, endangering paramount interest, give occasion for permissible limitation.” Siegel says this was “the first clear, succinct, and complete statement” of the term “strict scrutiny.”
Starting in 1969, with the end of the Warren Court, the compelling state interest standard spread within the precincts of equal protection analysis. Says Siegel, “racial classification was perhaps the last area of constitutional law expressly brought within the scope of the compelling state interest standard.” Not until the late 1970s, he adds, was an equal protection case effectively decided on the principle that the regulation at issue must be precisely tailored to serve a compelling government interest.
“We have held,” the Court has said, “that, in order to justify the use of a [racial] classification, a state must show that its interest is both constitutionally permissible and substantial, and that its use of the classification is “necessary . . . to the . . . safeguarding of its interest.”
At issue in Bakke was the legality of a state medical school’s admissions program that used race in deciding whom to accept. The defendant state medical school needed such an “interest” in order to make its case. In the Supreme Court it asserted four. Only one received the approval of, it turned out, a single Justice—Powell—and it was described by him as “obtaining the educational benefits that flow from an ethnically diverse student body.” The interest was also known rather tersely as “the attainment of a diverse student body.”
The courts ordered Bakke’s admission. Yet the case did not produce a majority opinion but six separate ones. In his opinion Justice Powell sought to explain how a school could lawfully select a racially diverse student body that would generate educational benefits. Powell’s advice was widely taken in higher education while lawsuits continued to challenge the constitutionality of racial admissions.
And then, in the 2003 Grutter case, writing for a five-Justice majority, Justice O’Connor endorsed the diversity rationale in the course of rejecting a challenge to the race-conscious admissions process in place since 1992 at the Michigan law school. Racial diversity and the educational benefits it yields are so important, it was said, that race must be used in deciding who gets admitted. And what about those discriminated against in the process? It happened. It happens still.
