The Too-Many-Minorities and Racegoating Dynamics of the Anti-Affirmative-Action Position: From Bakke to Grutter and Beyond

Twenty five years ago, in Regents of the University of California v. Bakke, the United States Supreme Court validated certain considerations and uses of race in university and college admissions decisions. Writing only for himself in one part of the Bakke Court's opinion, Justice Powell expressed his view that the attainment of a diverse student body was a constitutionally permissible goal for an institution of higher education. A quarter century later, in the University of Michigan affirmative action cases discussed in this article, a majority of the Court endorsed Powell's view that the compelling state interest in student body diversity justified the use of race in university admissions. Discussing and commenting on the Court's journey from Bakke to the 2003 Michigan decisions, this article also argues that the next battles over the constitutionality of affirmative action in higher education have just begun, as those who unsuccessfully asked the Court to hold that race-conscious and diversity-focused affirmative action violated the Constitution will continue to be animated by the too many- minorities and racegoating dynamics of the anti-affirmative-action position.