In the late 1990’s there was a national movement against the use of racial preferences in education and employment. The Supreme Court in Adarand Constructors v. Peña[case]Adarand Constructors v. Peña[Adarand Constructors v. Peña] (1995) held that all such programs must be justified by the compelling state interest test. Shortly thereafter, the Fifth Circuit Court of Appeals invalidated an affirmative action program of the University of Texas Law School. The court of appeals concluded that many of the ideas that Justice Lewis F. Powell, Jr., expressed in Regents of the University of California v. Bakke[case]Regents of the University of California v. Bakke[Regents of the University of California v. Bakke] (1978) were not binding precedents. The court held that any racial preferences would have to be justified by proof of the continuing effects of past discrimination and that the goal of diversity would not pass constitutional scrutiny as a “compelling” justification. Because the Supreme Court refused to grant certiorari, the judgment was binding on the fifth circuit unless modified by a later decision. Justice Ruth Bader Ginsburg took the unusual step of writing that the denial of certiorari did not necessarily mean that the majority of the justices agreed with the circuit court’s rationale.Affirmative action;Texas v. Hopwood[Texas v. Hopwood]

Adarand Constructors v. Peña

Affirmative action

Education

Equal protection clause

Race and discrimination

Regents of the University of California v. Bakke