Affirmative Action and Higher Education
Two people stand in a room looking at a vibrant painting and receive a totally different image. This is something we all realize can happen. It is our different perspectives that make us valuable too each other. When trying to solve a problem or create a new idea, we need each other to bring forth considerations and concepts that would never occur otherwise. This concept is something most of us grasp in theory, yet it never ceases to confound and confuse us if someone draws a conclusion tangent from ours when presented with the same information. This situation lies at the heart of the argument over affirmative action. Policies that are viewed by some as righting past wrongs are viewed by others as creating a level playing field or even instigating a new phase of unjust discrimination. Part of this confusion is because the range of views not only shifts between people, but also over time. Policies that once appeared to be necessary can, in a few decades, seem excessive. When Justice Powell, along with the rest of the United States Supreme Court, handed down the decision in Regents of University of California v. Bakke in 1978, he attempted to give a rational for affirmative action in higher education that did not rely on retribution for one race; however, over time modest progress improving minority representation in schools have combined with the frustrations of a new generation to create a present situation that puts the past's policies under new political and legal scrutiny.
When the Bakke decision was handed down it set standards for what affirmative action programs should be like. Specifically, it referred to the Harvard process (Schauer 592), but abstractly it was more general. It acknowledged that as a policy concerning race, any program would be subject to strict scrutiny and would have to demonstrate a compelling state interest. Having done so it would still need to be narrowly tailored so as not to unduly injure any associated groups or individuals. Powell determined that attaining a diverse student body in an institution of higher education was a compelling state interest. In order to be narrowly tailored to this interest, the institution should use race as a "plus" factor. The quota system that the University of California applied set aside positions for minority students and focused on having a diverse statistical surface rather than attaining actual diverse backgrounds. Rather, as was done at Harvard, it was expected that all students should be considered together and race used as a bonus for minorities that would help account for the special perspective such students could bring to the campus (Schauer 589-597). While Powell's outline for programs had plenty of dissenters, none of them ever made it to a prominent position in the court system and so, since 1978, the rules of Bakke have been the proverbial law of the land. That is, until recently.
In 1994, a new case, Hopwood v....