Few issues in American constitutional law have sparked as much sustained debate and jurisprudential evolution as affirmative action. Thurgood Marshall’s pivotal role in Regents of the University of California v. Bakke (1978) reflected his view that the Equal Protection Clause of the Fourteenth Amendment should not be read as a mandate for strict colorblindness—rather, it should allow race-conscious efforts to remedy entrenched inequities. In the years following Bakke, the Supreme Court repeatedly confronted questions about the legitimacy and scope of affirmative action programs, shaping a complex legal doctrine that would see significant ebbs, flows, and recalibrations. This chapter section explores the progeny of Bakke, tracing how courts—and occasionally legislators and administrators—have interpreted, expanded, or curtailed Marshall’s vision of affirmative action as a constitutionally permissible (and, in his view, necessary) remedy for historical and structural discrimination.
Before diving into post-Bakke developments, it is worth revisiting the decision’s central fault lines. In Bakke, the Supreme Court struck down the specific quota system used by the University of California, Davis, medical school but nonetheless held that race could be considered as one factor among many in admissions. Although there was no single majority opinion, Justice Lewis Powell’s controlling opinion endorsed diversity in higher education as a “compelling state interest,” grounding the decision in First Amendment academic freedom principles. Thurgood Marshall, concurring in part and dissenting in part, went further, emphasizing the remedial justification for affirmative action: ongoing racial disparities were not accidental but the product of systematic oppression that the Fourteenth Amendment was designed to address.
Marshall’s stance provided a moral and historical foundation for later courts to interpret affirmative action as a permissible tool, at least under certain conditions. While he did not prevail on the quota question, his arguments about structural inequality permeated subsequent jurisprudence. The tension, however, remained: should affirmative action be purely about “diversity” in educational settings, or did the Constitution also allow race-conscious measures to correct the vestiges of discrimination? Over the next several decades, the Supreme Court would wrestle repeatedly with this question.
Fullilove v. Klutznick (1980)
Shortly after Bakke, the Court upheld a federal statute requiring that at least 10% of public works funding be allocated to minority-owned businesses. Fullilove v. Klutznick reflected a broad understanding of congressional power under Section 5 of the Fourteenth Amendment to remedy past discrimination. Justice Thurgood Marshall joined in the majority, reinforcing the principle that the government could take affirmative steps to assist groups historically shut out of economic opportunities. Although the majority did not adopt a uniform rationale, the overall judgment was that Congress had broad latitude to identify and counteract systemic racism—an approach much in line with Marshall’s stance in Bakke.
Wygant v. Jackson Board of Education (1986)
Wygant marked a more restrictive turn. The case involved a school board policy that shielded minority teachers from layoffs in order to maintain a diverse faculty. In a 5–4 decision, the Supreme Court struck down the policy, concluding that it imposed an unfair burden on non-minority teachers with greater seniority. Marshall dissented, underscoring that the school board’s interest in ensuring minority role models for students was deeply connected to rectifying a history of racial discrimination in the teaching profession. The majority’s reluctance to accept this rationale signaled growing skepticism about the constitutionality of “benign” race-based classifications, unless they were narrowly tailored and supported by solid evidence of specific past discrimination.
City of Richmond v. J.A. Croson Co. (1989)
In Croson, the Supreme Court invalidated Richmond, Virginia’s set-aside program, which reserved 30% of city construction contracts for minority-owned businesses. The Court, now more conservative in composition, held that states and localities—unlike Congress—must demonstrate a compelling interest in remedying the effects of identified discrimination and that any race-conscious remedy must be narrowly tailored. Although Marshall dissented, the majority insisted that broad statistical disparities were insufficient. In the post-Croson world, governments adopting affirmative action needed tangible proof of specific wrongdoing, effectively raising the evidentiary bar for states and municipalities.
Though Croson did not eliminate affirmative action, it placed the policy on precarious constitutional footing. While Marshall lamented that the Court’s approach would perpetuate systemic disparities by demanding nearly impossible-to-prove patterns of recent, intentional discrimination, Croson became a signpost that local and state governments must navigate carefully if they wished to use race-based measures.
Adarand Constructors, Inc. v. Peña (1995)
If Croson hinted that all racial classifications by government entities should face exacting scrutiny, Adarand made it explicit. The case involved a federal program that provided financial incentives to prime contractors who hired minority subcontractors. Overruling earlier precedents that had treated federal programs more leniently, the Court declared that the same “strict scrutiny” standard used for state and local programs (post-Croson) would also apply to federal affirmative action measures.
Under strict scrutiny, government racial classifications must serve a “compelling interest” and be “narrowly tailored” to achieve that interest. The Court concluded that while remedial measures might still be permissible, they demanded rigorous proof of both a factual predicate (i.e., documented discrimination) and a tailored remedy that went no further than necessary. Justice Sandra Day O’Connor’s majority opinion maintained that strict scrutiny was not “strict in theory, but fatal in fact,” yet, in practice, this stringent test often led to the invalidation or scaling back of race-conscious programs.
From Marshall’s perspective—he had retired by the time Adarand was decided—this new, universal requirement of strict scrutiny risked ignoring longstanding structural inequalities. He had argued in Bakke and subsequent dissents that the Fourteenth Amendment, precisely because it was drafted to protect Black Americans from institutionalized racism, should be read to permit proactive remedies. Adarand reinforced the Court’s pivot toward an increasingly colorblind reading of equal protection, though it did not shut the door on all affirmative action entirely.
Hopwood v. Texas (1996) and the Push to End Race-Based Admissions
Shortly after Adarand, lower courts took an even more restrictive stance, most notably in Hopwood v. Texas. There, the Fifth Circuit struck down the University of Texas School of Law’s admissions policy, asserting that diversity was not a compelling interest under the Fourteenth Amendment—a direct challenge to Bakke’s central premise. Although the Supreme Court declined to review Hopwood, the ruling prompted the University of Texas and other schools within the Fifth Circuit to halt race-conscious admissions altogether, adopting “race-neutral” alternatives like the “Top 10% Rule” for undergraduate admissions.
Hopwood exemplified how some courts interpreted Bakke’s fractured opinions as insufficiently binding, emboldening them to reject diversity as a rationale. While the Supreme Court’s silence on Hopwood left the status of diversity-based admissions uncertain, it effectively invited another direct confrontation in the form of a future test case. That test case arrived in the early 2000s, forcing the Court to grapple anew with the question: was diversity alone still a valid reason to consider race in admissions?
Grutter v. Bollinger (2003) and the Revival of Diversity
The University of Michigan Cases
Facing confusion in lower courts over the validity of diversity as a compelling interest, the Supreme Court took two cases from the University of Michigan in 2003: Grutter v. Bollinger, involving the law school, and Gratz v. Bollinger, involving undergraduate admissions. The law school used a holistic approach that considered race among multiple factors; the undergraduate college assigned a point value for race in a more formulaic system.
Grutter v. Bollinger (2003)
By a 5–4 margin, the Court upheld the law school’s race-conscious admissions process, explicitly reaffirming Justice Powell’s diversity rationale from Bakke. Writing for the majority, Justice Sandra Day O’Connor acknowledged that a racially diverse student body yields educational benefits, fostering cross-cultural understanding and leadership skills for a pluralistic society. Critically, the Court accepted that the law school’s program was narrowly tailored: it did not function as a quota and allowed for individualized consideration of each applicant.
In many respects, Grutter represented a partial triumph for Marshall’s perspective. Though it did not rest on the remedial justification for affirmative action that he had championed, it unequivocally affirmed that diversity was a valid constitutional objective. Moreover, the Court underscored that holistic evaluations of applicants could pass muster under strict scrutiny, proving that not all race-conscious admissions programs would automatically fail.
Gratz v. Bollinger (2003)
Decided the same day as Grutter, Gratz struck down the University of Michigan’s undergraduate formula, which awarded 20 points (out of 150) for membership in certain underrepresented minority groups. The Court concluded this system was too mechanistic, insufficiently individualized, and thus not narrowly tailored. While the justices did not reject the concept of diversity outright, they demanded a more nuanced approach.
Marshall’s Enduring Ideas in Grutter
Although Marshall had passed from the Court a decade before Grutter, his arguments survived in the majority’s acceptance of a race-conscious admissions policy that was neither a quota nor an automatic point system. By resurrecting Bakke’s emphasis on diversity, the Court implicitly recognized that the Constitution might allow race to be factored in for broader societal benefits, not merely for rectifying identified discrimination. This outcome owed much to the doctrinal foundation Marshall had helped lay in Bakke, even if the majority in Grutter favored the diversity rationale over an overtly remedial one.
Fisher I (2013) and Fisher II (2016)
The University of Texas at Austin’s admissions policies, partly shaped by the “Top 10% Rule” adopted after Hopwood, included a limited consideration of race for applicants who did not qualify automatically. Abigail Fisher sued, arguing that UT’s approach failed strict scrutiny. The Supreme Court heard the case twice, resulting in Fisher v. University of Texas at Austin (Fisher I, 2013) and Fisher II (2016).
Fisher I (2013)
The Court remanded the case to the Fifth Circuit, instructing it to apply stricter scrutiny, emphasizing that courts must verify that no workable race-neutral alternatives can produce the educational benefits of diversity. This directive reflected a heightened vigilance about whether universities could demonstrate the necessity of using race.
Fisher II (2016)
On the second go-round, a 4–3 Court upheld UT Austin’s use of race, concluding that the university had provided concrete evidence that the Top 10% Rule alone was insufficient to achieve its diversity goals. The majority opinion, authored by Justice Anthony Kennedy, reaffirmed that diversity remains a compelling interest, but institutions must continually reassess the necessity of using race to ensure they do not overreach.
While Marshall was no longer on the Court to weigh in, the Fisher rulings consistently echoed themes he championed: that race can be utilized as part of a careful, context-sensitive approach to admissions aimed at broadening opportunity. The decisions also highlighted the stringent demands of modern strict scrutiny, requiring universities to produce data-driven justifications and demonstrating the continuing tension between colorblind ideals and race-conscious remedies.
Employment and Contracting
Outside the university context, the post-Bakke era brought crucial rulings on employment policies. Cases like Ricci v. DeStefano (2009), concerning promotional exams in the New Haven Fire Department, raised the question of when an employer can discard test results that have a disparate racial impact for fear of liability. Although Ricci was not strictly an “affirmative action” case—rather it dealt with disparate-impact analysis under Title VII—its emphasis on colorblind procedural standards reflected the same concerns. The Court’s cautious approach, requiring strong evidence before an employer can adopt race-conscious measures to avoid liability, underscored that any government or quasi-government entity using race would face skepticism akin to strict scrutiny.
Meanwhile, in the realm of federal contracting, Adarand and its progeny compelled agencies to maintain detailed findings justifying minority set-aside programs. While some survived under narrower tailoring, many were challenged or scaled back. Marshall’s argument that structural racism demands proactive solutions remained influential in policy discussions, but the courts generally required tight documentation of proven discrimination, a requirement Marshall decried as unrealistically high for a problem as pervasive as systemic bias.
Affirmative Action in K-12 Education
In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the Court struck down voluntary desegregation plans that assigned students to schools based partly on race, aiming to maintain racial balance. Chief Justice John Roberts famously wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” effectively resurrecting a strict colorblind interpretation. Justice Stephen Breyer’s dissent, joined by others, lamented the departure from Brown v. Board of Education’s vision. Although the Court’s majority insisted it was not abandoning Brown, the decision severely limited the ability of public K-12 schools to use racial considerations to promote diversity.
Marshall’s earlier arguments about the moral and constitutional imperative to address de facto segregation remained in the background, serving as a counterpoint to the majority’s colorblind approach. The Parents Involved ruling showcased how the post-Bakke era’s skepticism toward race-conscious measures extended beyond higher education, even as some justices—channeling Marshall’s spirit—warned that ignoring race altogether could perpetuate entrenched inequities.
Narrow Tailoring vs. Structural Inequality
At the heart of modern affirmative action law lies the tension between the Supreme Court’s demand for narrow tailoring and the reality that racial disparities are systemic and multifaceted. As Marshall stressed, centuries of oppression have left minority groups at a significant disadvantage in education and employment pipelines. Strict scrutiny, however, often demands discrete evidence of specific, recent discrimination. Critics argue that this requirement overlooks the broader structural nature of inequality, thereby undermining the transformative potential of affirmative action. The result is that institutions seeking to maintain or expand race-conscious measures face constant legal threats unless they fit their policies into a tightly constrained mold—focusing primarily on the intangible “diversity” rationale rather than explicitly acknowledging remedial imperatives.
The Diversity Rationale vs. Remedial Aims
While Grutter and Fisher reaffirmed diversity as a compelling interest, they largely sidestepped the remedial arguments that Marshall championed. The preference for diversity-based justifications reflects a strategic legal choice: it is easier to defend an admissions program on the grounds of enriching the educational environment than to prove specific, ongoing discrimination. Marshall argued, however, that ignoring the remedial foundation sidestepped a stark reality—that Black, Latino, and Native American communities continue to battle the legacies of Jim Crow, redlining, and other overtly racist policies.
From a broader societal perspective, some critics warn that diversity alone risks reducing affirmative action to a check-the-box measure that neither addresses historical injustices nor ensures meaningful equity. Proponents counter that the diversity rationale resonates widely with courts, the business community, and many educators, thus providing a pragmatic path to uphold at least some forms of race-consciousness under strict scrutiny.
Conservative Challenges and the Future of Affirmative Action
Conservative and libertarian legal organizations have relentlessly pursued litigation challenging race-conscious admissions, seeing Fisher as a roadmap to demand more rigorous judicial oversight. These cases often argue that the educational benefits of diversity can be achieved through race-neutral means, from targeting low-income students to focusing on geographic diversity. As of the 2020s, new lawsuits target major universities, contending that race-based admissions discriminate against Asian American applicants. Whether these cases will fundamentally alter or even end race-conscious admissions remains to be seen.
Recent changes in the Supreme Court’s composition have sparked speculation about a more definitive ruling that might undermine Grutter and Fisher. If the Court were to reject the diversity rationale or tighten strict scrutiny further, the legal space for affirmative action would become narrower still. That scenario would depart substantially from Marshall’s vision in Bakke, in which race-conscious policies were integral tools for dismantling the vestiges of institutional racism.
Shaping the Constitutional Discourse
Even as the Court has moved toward a more colorblind perspective, Thurgood Marshall’s arguments in Bakke and his subsequent dissents have remained a touchstone for those who believe the Constitution not only permits but may require proactive measures to level the playing field. Law review articles, judicial opinions, and legislative debates frequently cite Marshall’s impassioned insistence that a purely colorblind approach cannot address deeply rooted inequities. His historical framing of the Fourteenth Amendment as a tool for extending full citizenship to formerly enslaved people—and by extension to other minority groups—continues to inform legal strategies that defend affirmative action.
Influence in Academia, Policy, and Public Opinion
Outside the courtroom, Marshall’s perspective resonates in academic discourse, policy debates, and advocacy organizations focused on racial justice. Many educational institutions adapt their affirmative action programs to align with Grutter and Fisher, but they also channel Marshall’s broader moral arguments when explaining their rationale to students and faculty. By emphasizing social equity and the benefits of a representative student body, these institutions echo the spirit of Marshall’s call for real inclusiveness.
Public opinion on affirmative action remains divided, often reflecting the same tensions visible in the courts. Polls frequently show tepid support for race-based preferences but broader approval for addressing educational inequities. This dichotomy parallels the legal tension: many Americans—like many justices—accept the premise that society should combat racial inequality yet remain uneasy about explicitly using race as a factor. In that unsettled terrain, Marshall’s clarion call for recognizing the legacy of discrimination retains a persuasive power, reminding policymakers and the public that ignoring race can perpetuate, not eliminate, structural disadvantages.
Looking Ahead: Possibilities and Perils
The future of affirmative action remains uncertain. Ongoing litigation may produce Supreme Court rulings that further restrict or possibly eliminate race-conscious admissions. Even so, the principle that educational diversity is constitutionally valid has survived for decades after Bakke, suggesting that Marshall’s imprint is resilient. Meanwhile, race-neutral alternatives—such as percentage plans, socio-economic preferences, or geographically targeted recruitment—continue to expand, raising questions about whether these methods can effectively substitute for direct consideration of race, particularly for groups historically relegated to underfunded schools and segregated neighborhoods.
Should the Court eventually repudiate race-based admissions entirely, public institutions may still explore creative approaches to uphold the spirit of Marshall’s mission. Some might use “holistic” approaches that weigh a host of non-racial factors correlated with disadvantage. Others might push for robust pipeline initiatives at the K-12 level, fulfilling a more preventative strategy. While these tactics might circumvent legal challenges, they risk diluting the explicit recognition of race as an axis of discrimination, thereby softening the transformative potential that Marshall believed was essential to truly close opportunity gaps.
In the decades since Bakke, the Supreme Court’s stance on affirmative action has evolved through a sometimes unpredictable path—occasionally endorsing race-conscious measures for the sake of diversity, yet scrutinizing them under the highest level of judicial review. Thurgood Marshall’s influence runs through this entire arc. His arguments about the Constitution’s purpose, the historical lineage of racial exclusion, and the moral urgency of race-conscious solutions helped shape the legal and ethical frameworks within which contemporary debates unfold. Even as the Court’s decisions veered away from his broader remedial rationale, the concept that diversity constitutes a compelling interest owes much to the seeds planted by Marshall in Bakke.
For all the doctrinal twists, the essential tension endures. On one side stands the colorblind ideal, which posits that any racial classification—no matter how benign—is presumptively suspect. On the other side stands Marshall’s conviction that ignoring race in a society still scarred by entrenched disparities perpetuates injustice. In the narrow legal domain, strict scrutiny often compels institutions to defend their policies in painstaking detail, demonstrating that race-conscious measures are indispensable to achieving a genuinely inclusive student body or workforce. But in the broader societal context, Marshall’s clarion call still resonates: addressing the deep roots of racial inequality may necessitate direct, intentional efforts that go beyond nominal neutrality.
Thus, the progeny of Bakke—including Fullilove, Croson, Adarand, Grutter, Fisher, and related controversies—underscore both the resilience and fragility of affirmative action. Resilience, because even under the gauntlet of strict scrutiny, race-conscious programs have survived when carefully designed to meet recognized constitutional interests. Fragility, because the push for a purely colorblind jurisprudence persists, threatening to dismantle what remains of these policies. Through it all, Thurgood Marshall’s vision remains a guiding counterpoint, reminding legal scholars, judges, and policymakers that the path to true equality may require more than passively prohibiting discrimination—it may demand confronting and rectifying the inequalities that continue to shape American life.