Cornell Law Review Volume 90 Issue 2

The Evolving Diversity Rational in University Admissions: From Regents v. Bakke to the University of Michigan Cases

Since the 1970s, Americans have wrestled with whether and how to implement affirmative action initiatives to equalize economic and educational opportunities for members of minority groups.  The role of affirmative action in higher education is central to this debate.  The late historian Hugh Davis Graham identified two types of affirmative action–one “soft” and the other “hard.”  Under “soft” affirmative action, he placed the aggressive outreach, pressure, and lobbying techniques pursued by the Kennedy and Johnson administrations.  Under “hard” affirmative action, Graham placed minority preferences, court-ordered set asides, and hiring quotas.  Both types of affirmative action have been used in minority recruitment programs for businesses and universities.  But nonminority groups, specifically white males, have sharply criticized affirmative action programs as discriminatory.  As a result of these challenges, the Supreme Court has reviewed the constitutionality of affirmative action programs in higher education admissions in three pivotal cases:  Regents of the University of California v. BakkeGrutter v. Bollinger, and Gratz v. Bollinger.  Bakke provides the historical and judicial context for understanding the significance of Grutter, which upheld the admissions program at the University of Michigan Law School, and Gratz, which struck down the undergraduate admissions program at the University of Michigan’s College of Literature, Science, and the Arts.


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