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Despite Allan Bakke's victory on the specific issue of his admission, the Bakke decision actually served to solidify the use of racial classifications within carefully constructed affirmative action programs. In fact, two years later, the Court suggested that even some quota systems were permissible. In Fullilove v. Klutznick the Court upheld a federal law requiring that ten percent of all public works contracts be awarded to minority-owned businesses.
But in the decades since, the Court has suggested that programs like these are under increasing scrutiny and require increasingly narrow construction. For example, in 1986 the Court held that a contract that gave minority teachers more protection against lay-offs than white teachers was unfair (Wygant v. Jackson Board of Education). Similarly, in 1989, the Court struck down a municipal program that set aside 30% of all public works contracts for minority businesses (City of Richmond v. J.A. Croson Company). In both instances the Court found inadequate proof of specific, local discrimination to warrant the use of racial classifications. It insisted that affirmative action programs employing racial classifications were still permissible, but only when constructed as a remedy for proven and specific discrimination in the past.
Finally, in 2003, the Court returned to the issue of affirmative action programs in higher education in considering two cases involving the University of Michigan: Gratz v. Bollinger, concerning the use of race in undergraduate admissions, and Grutter v. Bollinger, concerning the law school admissions process. The result was another "split decision" that served notice that affirmative action programs employing racial classifications, while still acceptable, will be subject to very close scrutiny by the Court in the future. If racial classifications are applied too heavily, as was the case with Michigan's undergraduate admissions policies, according to the Court, they will be struck down. If race is used more carefully along with many other factors in order to achieve diversity, as was the case with the law school admissions program, the Court would accept it. But, added Justice Sandra O'Connor, the Court's support for even these more narrowly constructed programs was not endless. Within a generation, she predicted, the use of these sorts of racial classifications would not be acceptable to the Court.
Justice O'Connor's suggestion that the Court's patience for affirmative action was limited has been echoed in the political arena by state initiatives seeking an end to racial classifications in college admissions and public hiring. In 1996, California voters passed Proposition 209 making it illegal to "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 state of Washington passed a similar initiative in 1998; Nebraska did the same in 2008, and in 2000, the Florida legislature also banned the use of racial classifications in college admissions.
For many, these events portend the end of a misguided and unfair strategy to redress past discriminatory practices. According to these critics, granting preferential treatment to minorities violates the rights of majorities. By separating performance from reward, affirmative action threatens America's educational and industrial superiority. It leaves a cloud of suspicion hanging over the achievements of all African-Americans, and it actually delays the development of a truly color-blind society.
But supporters of affirmative action argue that without it America's colleges and industries will never overcome the legacies of centuries of racial oppression. They point to the dramatic decline in minority enrollment at the University of California after the passage of Proposition 209. And they argue that advocates of a racially neutral, level playing field ignore the fact that whites still enjoy certain cultural and economic advantages—that is, even today, whites benefit from subtle forms of racial preference.
In hindsight, sorting out legal and philosophical questions is easy. Looking back at the desegregation struggles of the 1950s, right and wrong seem to jump off the page and the video clip. But, despite what some say, history does not exactly repeat itself. It offers to every generation its own unique challenges, its own philosophical, legal, and political dilemmas. History can provide us with a certain framework, a set of examples that add dimension to our judgment. But it can't give us all the answers. History will, however, judge us—just as we judge the history that came before us.