Public understanding of the shape and direction of affirmative action has been influenced primarily by US Supreme Court decisions. However, affirmative action litigation decided in state courts and federal courts other than the Supreme Court has also had a lasting influence on its legality and practice.

Penn v. Stumph

Penn v. Stumph addressed racial discrimination in the hiring practices of the Oakland Police Department in California. Plaintiff Clarence Penn applied for a position as a police officer in the late 1960s. The Oakland Civil Service Board of Commissioners, the body that oversaw police hiring, required that each applicant pass a written “Mental Ability” test, a written “General Knowledge” test, a psychiatric evaluation, an “Oral Examination” and a background investigation. Penn failed one of the written tests and was precluded from taking any of the other exams.

Penn filed suit in the US District Court for the Northern District of California, alleging that the recruiting and hiring process violated the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. He also alleged that such discrimination extended to all African-American applicants, Mexican-American applicants and applicants with Spanish surnames. The defendants filed a motion for dismissal.

On February 3, 1970, after review of the tests, the interview and the hiring practices, as well as a conclusion that plaintiff’s rights were protected by the Civil Rights Act of 1964, the court denied the motion to dismiss:

In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

The Police Department later settled with Penn, signing the Penn-Stumpf Consent Decree. The decree created special hiring practices for minority and women applications to the police department.

Hopwood v. Texas

In the case of Hopwood v. Texas, plaintiffs Cheryl Hopwood, Douglas Carvell, Kenneth Elliot and David Rogers applied to the University of Texas School of Law in 1992. All four were white residents of Texas who had educational backgrounds and test scores that necessitated an additional review of their application rather than an automatic acceptance. However, the additional review was separated by race — African-American and Mexican-American applicants were distinguished from white applicants and given their own additional review. White students rejected from the additional review pool often had higher GPAs and LSAT scores than African-American and Mexican-American students offered acceptance.

In the US District Court for the Western District of Texas, Austin Division, plaintiffs sued under the Equal Protection Clause of the Fourteenth Amendment as well as violations of 42 U.S.C. §§ 1981 and 1983 and Title VII of the Civil Rights Act of 1964. On August 19, 1994, the district court ruled that while the plaintiffs’ equal protection rights had been violated, the University of Texas School of Law could not be prevented from using race as an admission factor.

On appeal, the US Court of Appeals for the Fifth Circuit determined that the law school could not use race as a special admission factor, even if race was just one factor among many:

[T]he University of Texas School of Law may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body, to combat the perceived effects of a hostile environment at the law school, to alleviate the law school’s poor reputation in the minority community, or to eliminate any present effects of past discrimination by actors other than the law school.

On remand, the trial court judge issued a permanent injunction, affirming the circuit court’s ruling. This injunction prohibited the consideration of race in college and university admissions processes. Both sides again appealed, and the Fifth Circuit affirmed its 1996 holding on December 21, 2000.

The original 1996 opinion by the Fifth Circuit and the resulting injunction guided admission practices for colleges and universities in Louisiana, Mississippi and Texas (the states comprising the Fifth Circuit) until the Supreme Court decision in Grutter.

Smith v. University of Washington, Law School

In Smith v. University of Washington, Law School, plaintiffs Katuria Smith, Angela Rock and Michael Pyle applied for admission to the University of Washington Law School in 1996. All three were denied admission. However, distinct from Hopwood, these applicants had GPA and LSAT scores that placed them squarely in the “admit” category. Plaintiffs alleged that the use of race as an admission criterion led to their rejections.

Filing suit in the US District Court for the Western District of Washington on July 1, 1997, plaintiffs alleged that the University of Washington Law School violated 42 U.S.C. §§ 1981, 1983 and 2000d by using “racially discriminatory admission policies.” Plaintiffs filed a motion for partial summary judgment. However, while the case was in court, Ballot Initiative Measure 200 passed at the polls on November 3, 1998. The measure decreed that the state of Washington “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

The University of Washington Law School, in light of new state law, moved to dismiss the individual and class actions. On February 12, 1999, the district court denied plaintiffs’ motion for summary judgment, and plaintiffs appealed.

On December 4, 2000, the US Court of Appeals for the Ninth Circuit ruled that the issue was moot given the new state law, and affirmed the lower court’s denial of the plaintiffs’ motion for summary judgment. The opinion for the Ninth Circuit indicated that, even had the issue not been moot, it would have decided in the state’s favor:

We, therefore, leave it to the Supreme Court to declare that the Bakke rationale regarding university admissions policies has become moribund, if it has. We will not. For now, therefore, it ineluctably follows that the Fourteenth Amendment permits University admissions programs which consider race for other than remedial purposes, and educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures.

Coalition to Defend Affirmative Action v. Regents of the University of Michigan

Following the June 2003 Supreme Court decisions of Gratz v. Bollinger and Grutter v. Bollinger, Michigan voters passed Proposal 2 on November 7, 2006. The proposal amended the state constitution and discontinued any affirmative action activities used by the state, including state colleges and universities. Per Proposal 2, criteria including race, sex, color, ethnicity and national origin could not be given preferential treatment. Multiple plaintiffs filed various lawsuits against public officials and public universities in the US District Court for the Eastern District of Michigan, and the cases were effectively consolidated as Coalition to Defend Affirmative Action v. Regents of the University of Michigan [PDF]. On December 19, 2006, the district court issued a preliminary injunction against state universities from implementing Proposal 2. Parties in favor of Proposal 2 fought for an injunction against the stay. On November 30, 2007, the Michigan Attorney General filed a “motion to dismiss for lack of standing or, in the alternative, a motion for summary judgment on the merits as to all Plaintiffs.” The district court approved the motion for summary judgment on March 18, 2008, and plaintiffs appealed to the US Court of Appeals for the Sixth Circuit.

On November 15, 2012, the Sixth Circuit held that Proposal 2 was unconstitutional and thus reversed the district court’s granting of summary judgment for the defendants. In addition, the court stated: “Most importantly, our holding does not place race-conscious admissions policies beyond the political process. Opponents of affirmative action remain free to advocate for their preferred policies in the same manner and at the same level of government as its proponents.” On November 28, 2012, the Michigan Attorney General filed a petition for a writ of certiorari to the US Supreme Court, and on March 25, 2013, the US Supreme Court granted the petition, as outlined above.