MALDEF

Observing the 30th Anniversary of the Bakke Decision, MALDEF Continues To Fight For Equal Access and Diversity in Higher Education

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JULY 10, 2008 - Thirty years ago, the United States Supreme Court issued its opinion in Regents of the University of California v. Bakke (1978). The ruling struck down a UC Davis Medical School admissions program that set aside a specified number of seats for racial minorities, while at the same time overturning the lower court's complete prohibition on the consideration of race under any circumstance. MALDEF filed an amicus brief in the Bakke case arguing for the preservation and promotion of affirmative action to ensure access and equality to higher education for the nation's Latinos.

The Bakke Court, like the current Supreme Court, was badly fragmented. Six separate opinions were issued, and no more than four justices agreed in their reasoning. Justice Powell's opinion in Bakke established the law on affirmative action, and in the intervening 30 years, the legal landscape regarding access and equity in higher education has not changed much. Justice Powell's opinion provided that in the context of student admission to higher education, race can be considered as one factor among many; that specific numerical quotas are constitutionally impermissible, although goals are acceptable; and that while affirmative action programs cannot be used to remedy past societal discrimination, a diverse student body is a compelling reason for considering race in admissions decisions.

By the mid-90's, several states had banned race-based affirmative action at public colleges and universities. California passed Proposition 209 and Washington passed I-200. Texas, Mississippi, and Louisiana banned affirmative action at both public and private institutions after the Fifth Circuit's decision in Hopwood v. Texas. Because California and Texas are home to the largest Latino populations in the nation, these anti-affirmative action movements resulted in significant setbacks. Georgia banned affirmative action after a similar legal challenge. Florida followed suit pursuant to an executive order issued by Jeb Bush.

In 2003, the Supreme Court once again considered the constitutionality of race-conscious admissions in Grutter v. Bollinger. That decision affirmed that race can be used as one of many factors in admissions decisions to further the compelling interest of student body diversity. Following the Grutter decision, only 3 states continued to ban affirmative action: California, Washington, and Florida.

In his opinion in the Bakke case, Justice Blackmun expressed the view that the need for affirmative action would elapse within a decade. Unfortunately, Justice Blackmun's prediction failed to transform itself into reality. Indeed, according to a recent report issued by the Tomas Rivera Policy Institute, "[t]he elimination of affirmative action has sharply decreased the number of underrepresented students enrolling in medical schools." The report states that Latino applicants to the top 10 public and private medical schools has decreased 38.6%, from 2,769 in 1995 to 1,700 in 2001. Similarly, the report found that the number of Latino and African-American law students enrolled in the University of California's three law schools declined by 28% after California passed Proposition 209.

"Two of the states that continue to ban any consideration of racial diversity in their public universities -- California and Florida -- are among the states with the highest Latino population," noted Cynthia Valenzuela, MALDEF Director of Litigation. "This creates long-lasting negative effects on the entire Latino community, and because we are one of the fastest growing communities in the country today, the effects are especially pernicious."

For these reasons, MALDEF continues to fight for diversity in higher education. In April, the MALDEF Board of Directors voted unanimously to oppose "Amendment 46," a Colorado ballot initiative that would import California's harmful ban on affirmative action to that state. We are also closely monitoring changes in higher education admissions policies in Arizona, California, and Texas and their potential impact on Latino educational access. At the same time, MALDEF is working to improve educational equality among Latinos at the K-12 level. MALDEF is committed to ensuring a quality education, a connection to opportunity, and a path to success for the next generation of Latino leaders.

Copyright 2009 MALDEF — Mexican American Legal Defense and Educational Fund