{
  "id": "R45481",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "R45481",
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  "source": "EveryCRSReport.com",
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    {
      "source": "EveryCRSReport.com",
      "id": 590597,
      "date": "2019-01-31",
      "retrieved": "2019-04-17T14:27:00.385683",
      "title": "\u201cAffirmative Action\u201d and Equal Protection in Higher Education",
      "summary": "When federal courts have analyzed and addressed \u201caffirmative action\u201d in higher education, they have done so in two distinct but related senses, both under the Fourteenth Amendment\u2019s guarantee of \u201cequal protection.\u201d\nThe first has its roots in the original sense of \u201caffirmative action:\u201d the mandatory use of race by public education systems to eliminate the remnants of state-imposed racial segregation. Because state-sanctioned race segregation in public education violates the Fourteenth Amendment\u2019s Equal Protection Clause, in certain cases involving a state\u2019s formerly de jure segregated public university system, a state\u2019s consideration of race in its higher education policies and practices may be an affirmative obligation. As the U.S. Supreme Court explained in its consequential 1992 decision United States v. Fordice, equal protection may require states that formerly maintained de jure segregated university systems to consider race for the purpose of eliminating all vestiges of their prior \u201cdual\u201d systems. Drawing upon its precedent addressing racially segregated public schools in the K-12 context, the Court established a three-part legal standard in Fordice for evaluating the sufficiency and effectiveness of a state\u2019s efforts in \u201cdismantl[ing]\u201d its formerly de jure segregated public university system. To that remedial end, mandatory race-conscious measures\u2014in this de jure context\u2014are not limited to admissions. Instead, remedies may also address policies and practices relating to academic programs, institutional missions, funding, and other aspects of public university operations.\nOutside this de jure context, \u201caffirmative action\u201d has come to refer to a different category of race-conscious policies. These involve what the Court at one time called the \u201cbenign\u201d use of racial classifications\u2014voluntary measures designed not to remedy past de jure discrimination, but to help racial minorities overcome the effects of their earlier exclusion. And for institutions of higher education, the Court has addressed one type of affirmative action policy in particular: the use of race as a factor in admissions decisions, a practice now widely observed by both public and private colleges and universities.\nThe federal courts have come to subject these voluntary race-conscious policies\u2014\u201caffirmative action\u201d in its perhaps more familiar sense\u2014to a particularly searching form of review known as strict scrutiny. And even though this heightened judicial scrutiny has long been regarded as strict in theory but fatal in fact, the Court\u2019s review of race-conscious admissions policies in higher education has proved a notable exception, with the Court having twice upheld universities\u2019 use of race as one of many factors considered when assembling their incoming classes. The Court has long grappled with this seeming tension\u2014between the strictness of its scrutiny and its approval of race-conscious admissions policies\u2014beginning with its landmark 1978 decision in Regents of the University of California v. Bakke through its 2016 decision in Fisher v. University of Texas.\nThough the Equal Protection Clause generally concerns public universities and their constitutional obligations under the Fourteenth Amendment, federal statutory law also plays a role in ensuring equal protection in higher education. To that end, Title VI of the Civil Rights Act of 1964 prohibits recipients of federal funding\u2014including private colleges and universities\u2014from, at a minimum, discriminating against students and applicants in a manner that would violate the Equal Protection Clause. Federal agencies, including the Departments of Justice and Education, investigate and administratively enforce institutions\u2019 compliance with Title VI.",
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      "typeId": "REPORTS",
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  "topics": [
    "Constitutional Questions"
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}