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Constitutionality of Racial Quota System in Admissions vis-à-vis Affirmative Action in USA

Updated: Oct 9, 2022

Authored by Anurag Chauhan, one of the Founding Members of TSCLD & a 5th-Year Student of CNLU Patna.

This blog will discuss whether the quota system in admission in state universities on the basis of race is constitutional in the USA. It will be discussed whether affirmative action in the USA allows fixing a quota of seats in admission for a particular race. But before that, let us first understand the concept of equal protection before the law in the US and the strict scrutiny test applied by the US courts in matters related to it. Equal protection before the law is mentioned in Section 1 of the Fourteenth Amendment to the US constitution. As per the 14th Amendment to the US Constitution,

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So, if a law passed by a federal government or state government infringes on an individual’s guaranteed rights, he/she may challenge the constitutionality of the law before the Courts. The court will apply any of these three types of scrutiny to test the constitutionality of the law in question: rational basis scrutiny, intermediate scrutiny and strict scrutiny test. Generally, strict scrutiny is invoked by the courts in cases related to the infringement of fundamental rights or involvement of suspect classification. Suspect classification means a class of people who have been subject to discrimination historically. It involves national origin, religion, race and alienage. As per the strict scrutiny test for the law in question, the government has to prove that it has a “compelling state interest” and that the law is “narrowly tailored”. A compelling state interest is one which is necessary or essential rather than a matter of preference, choice or discretion. In strict scrutiny, the presumption of constitutionality does not apply, so, the burden of proof for the constitutionality of the law/statute is on the state.

In Loving v. Virginia, a law which banned interracial marriage was challenged on the grounds of violation of the Equal Protection and Due Process Clauses of the 14th Amendment. The state of Virginia argued before the Supreme Court that the law was justified because there was a legitimate state interest in protecting the racial integrity of all racial groups, not just Caucasians. The Supreme Court applied the strict scrutiny test and rejected the argument of Virginia and held that the law was unconstitutional because the classification was solely on the basis of race. Although the law was generally made for all races, the Court did not find the legitimate state objective or “compelling state interest” in protecting the racial integrity of all races by a blatant race categorization.

The Strict Scrutiny test can also be understood with an example: suppose a law is passed by a state in the US which bans the burning of flags by individuals. As we already know, burning the US flag is a form of expression protected by the 1st Amendment to the US Constitution. Now, in order to prove such law (which prohibits burning of a flag) constitutional, the state will have to prove that it has to achieve a state objective or interest (or purpose) by such law also that the least restrictive measure is applied by the state in achieving such state interest or purpose. In the present scenario, there is no such state objective or purpose for the state government to limit an individual’s 1st Amendment Rights. Therefore, such a law will be held unconstitutional.

Now coming over to affirmative action and equal protection before the law in the US. Affirmative action means programs or legislations which aim at improving the employment or education of historically discriminated groups (women, racial minorities, etc.). Now the question which arises here is whether affirmative action is against Equal Protection Before Law mentioned in the 14th Amendment to US Constitution. In Regents of the University of California v. Bakke, the Supreme Court of the US held that if a university admits students solely on the basis of race, then the admission process is in violation of the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. In this case, Bakke was a white male applying to the University of California, Davis School of Medicine. His admission score far exceeded that of the average applicant, and although the school had vacancies when he applied, his application was rejected due to the school's racial quota system. Previously, it introduced a quota system in which white applicants could compete only for 84 spots out of 100, with the remaining 16 reserved for racial minorities. Bakke sued the school, claiming that the explicit racial quota system was unconstitutional and violated the Civil Rights Act of 1964. The court applied the strict scrutiny test in this case and held that there must be “compelling government interest” and the means adopted must be “narrowly tailored”, unlike the present case in which race was the sole criterion for excluding white students from admission among 16 certified seats for black students. The medical school contended that the compelling government interest, in this case, was to increase the representation of racial minorities in the medical profession to have a diverse student body so that classroom promotes the free exchange of ideas. The Court rejected the University’s arguments and held that there are other means to achieve representation of underrepresented racial groups and a diverse student body without a racial quota system. As per the Court, the race may be one of the considerations among many while providing admissions. But the Court ruled that a quota system that eliminates candidates based solely on their race constitutes racial discrimination as the university did not have a compelling reason or interest through reasonably tailored means to overcome the constitutional standard of strict scrutiny.

Further, in the case of Grutter v. Bollinger (2003), the Supreme Court reiterated Bakke’s ruling and upheld the constitutionality of a race-conscious admission policy of the University of Michigan’s law school because there were no explicit quotas in the admission policy. The admission was on the basis of various subjective factors, including race and ethnicity. Underrepresented ethnic and racial minorities got preference because it helped the law school to achieve a diverse student body. The Court held that affirmative action in the admission process was constitutional because there was a “compelling state interest” to increase the representation of minority underrepresented groups in the law school, and the means adopted was “narrowly tailored” as it did not involve a quota system.

In Fisher v. University of Texas (2016), the Supreme Court affirmed a race-conscious admissions policy of the University of Texas under the Equal Protection Clause of the 14th Amendment. The race-conscious admission policy offered admission to any student who graduated from a Texas high school in the top 10% of their class further, the remainder of the new students were admitted on the basis of an “Academic Index” of the applicant, which consisted of high school academic performance, SAT scores along with the “Personal Achievement Index” which was a holistic review containing various factors including race. Justice Kennedy leading the 4:3 decision, held that the compelling interest which justifies consideration of race in the admission process is the interest in obtaining the educational benefits which flow from a diverse student body. The court held that consideration of race as one of the factors was a symbol of narrow tailoring, not evidence of unconstitutionality. Ultimately, the court held that the petitioner failed to provide any meaningful way in which the present admission policy would have improved in such a way that it followed Grutter’s decision which aimed at diversity by giving preference to underrepresented races in admission as envisioned by the Bakke decision.

Therefore, it can be concluded that in the USA, it is unconstitutional to fix quotas in admissions solely on the basis of race because it would not withstand the strict scrutiny test as held in the above-mentioned cases. Although race can be one of the criteria for giving preference to the candidate in admissions to increase the diversity of the student body.

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