The Constitutionality of Affirmative Action

Affirmative action has long been perceived as a necessary means of making amends for the history of racism in the United States. Over time, there have been several challenges to the constitutionality of affirmative action policies, prompting the question: Do such policies violate the 14th Amendment’s Equal Protection Clause under the 14th Amendment?

In 2008, Abigail Fisher was denied admission to the University of Texas at Austin. Fisher filed suit, believing she was denied based on the color of her skin. The University defended its decision, stating that Fisher’s rejection was due to her grades as opposed to her race. Despite Fisher v. University of Texas Austin (2013) being taken up by the Supreme Court, expectations of a new precedent being established have not been met.

In a 7 to 1 decision the Supreme Court vacated and remanded the case back to the Fifth Circuit Court, calling for the reconsideration of the University’s admission standards but remaining silent concerning the constitutionality of policies aimed towards the achievement of racial diversity.

This isn’t the first time affirmative action has been before the Supreme Court. In the landmark case Grutter v. Bollinger (2003), the Court upheld affirmative action, ruling that the admission policy used by the University of Michigan Law School did not constitute a quota system and was therefore constitutional. The use of quota systems to ensure the inclusion of minorities was struck down as unconstitutional in Regents of the University of California v. Bakke (1978).

During its next term, the court will review Schuette v. Coalition to Defend Affirmative Action (2013), to determine whether the State of Michigan violated the 14th amendment by passing a constitutional amendment prohibiting affirmative action.

  • Does affirmative action violate the Equal Protection Clause?
  • Was the Supreme Court right to side step this issue?
  • Is affirmative action still necessary? What are some benefits or drawbacks of maintaining affirmative action?

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