As the constitution color-blind? "… Class remedies, such as affirmative action and racial set-asides, assume that all members of the 'monolithic white majority' are guilty of racial class injuries and all members of 'discrete and insular' minorities are victims of such injuries."

USA Today (Society for the Advancement of Education), July, 2004 by Edward J. Erler

In Adarand, a majority of the Court, led by Justice Sandra Day O'Connor, held that any law of policy based on a racial classification--whether intended to harm or to benefit racial minorities--must be subjected to "strict scrutiny." Under this form of analysis, no racial classification is permitted unless it can be proven to further a "compelling state interest." The majority in Adarand was badly split on the application of the strict scrutiny doctrine. O'Connor argued that racial classifications might survive in rare instances, while Thomas and Justice Antonin Scalia held that such classifications never can pass muster. Thomas cited the Declaration as support for his much maligned but correct conclusion that there is a "moral [and] constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality."

In Gratz v. Bollinger, one of file two affirmative action decisions handed down in 2003, the Supreme Court struck down the University of Michigan's undergraduate affirmative action admissions program for employing a racial quota. Writing for the majority, Chief Justice William Rehnquist reasoned that the admissions policy, "which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single 'underrepresented minority' applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that [the University] claim[s] justifies [its] program." (One ingredient of strict scrutiny analysis is that even if there is a compelling state interest in considering race, the use of racial classifications must be minimal or "narrowly tailored.") Rehnquist, it is worth noting, did not concede in this opinion that the University bad a compelling interest in promoting racial diversity. It was not necessary in Gratz to address that question because it was clear that the University operated a quota system that was not narrowly tailored to achieve its asserted interest.

Writing for the majority in the companion case, Grutter v. Bollinger, O'Connor reached back 25 years for her authority, to an argument made by Justice Lewis Powell in Bakke. Powell had argued, based on the First Amendment's protection of "academic freedom," that universities have a unique interest it, promoting diversity among students. No other justice in 1978 had joined in this opinion and its authority seemed to be limited. O'Connor was not deterred, though, and asserted that the University of Michigan Law School does indeed have a compelling interest in promoting a diverse student body through racial preferences. She did not attempt to explain the necessity of diversity in law schools, merely deferring to the good faith representations by university officials that it enhances education. Such deference to state actors virtually is unheard of in strict scrutiny analysis--for good and obvious reasons. Still, O'Connor wrote that "universities occupy a special niche in our constitutional tradition," and thai equal protection considerations must be subordinated to this privileged constitutional position. Based on this aspect of her opinion, there is some ground for arguing that the ruling will be limited to educational institutions.