The Supreme Court first addressed affirmative action in the 1978 case of Bakke v. Regents of the University of California, which concerned the University of California Davis Medical School’s use of quota systems for admissions. The Supreme Court held that the quota system, which allocated a specific number of seats for members of minority groups, violated the Equal Protection Clause of the Fourteenth Amendment. Justice Lewis Powell wrote that all racial classifications — beneficial and detrimental — were suspect and subject to strict scrutiny. Justice Powell’s decision stated that the state’s interest in remedying past discrimination was insufficient to justify the program as there was no evidence of past discrimination. The majority held that the system was unconstitutional in denying admission, but Powell also joined the minority in refusing to enjoin the use of race in affirmative action cases in the future. Justice Powell would have found an affirmative action program salutary if it considered race a “plus” in an applicant’s overall file but did not “insulate the individual from comparison with all other candidates for the available seats.” Powell considered it important for an affirmative action scheme to be flexible in examining all elements of diversity. These themes would re-emerge 25 later in the University of Michigan cases and Justice Sandra Day O’Connor’s opinion in Grutter v. Bollinger.

Grutter v. Bollinger, decided in 2003, brought the University of Michigan Law School’s affirmative action policy up for the Court’s review. University officials reviewed a range of factors, including race, in making admissions decisions, with the school citing an intent to remedy past discrimination in admissions. The opinion reiterated [PDF] Justice Powell’s Bakke stance that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” The Court upheld the law school’s admissions policy under strict scrutiny. The majority considered the policy to be narrowly tailored because race was among several factors considered in the admissions process.

Gratz v. Bollinger implicated the admissions policy of the University of Michigan’s undergraduate college. The university’s admission policy required that officers assign a score to applicants and to award additional points to minority applicants. The majority focused on the program’s blind assigning of points to all minority applicants, distinct from Bakke‘s holistic, individualized approach. Even though there was a component of individual consideration involved, it was not featured enough to counter the 20-point assignment and withstand strict scrutiny.

In Fisher v. University of Texas at Austin, Plaintiffs Abigail Noel Fisher and Rachel Multer Michalewicz challenged a university admissions policy that, similar to the policy challenged in Gratz and Grutter, used race as a factor in admissions decisions. The Court, in a 7-1 opinion, remanded the case to the lower court and ordered it to review the University’s policy under strict scrutiny.